Breaking news: India falls short to granting marriage rights to same-sex couples but the Chief Justice articulated unprecedented assertion of queerness and trans rights in verdict
Some initial thoughts on India’s same-sex marriage decision this morning
In my lifetime, I have witnessed changes I thought I would never see and heard sentences I thought I would never hear, such as these words from the Chief Justice of India this morning in Delhi:
“It is abundantly clear that homosexuality or queerness is not solely an urban concept, nor is it elite […] homosexuality is not a novel subject […]. it is also a woman working at a farm in a rural area […] if a transgender person wishes to marry a heterosexual person such marriage will be recognized as one would be man and another would be woman, transgender man has the right to marry a woman, transgender woman has the right to marry a man and transgender woman and transgender man can also marry and if not allowed it will violate transgender act […] The court is not equipped to undertake an exercise of such amplitude.”
Dhananjaya Yeshwant Chandrachud, Chief Justice of India
I need to refine my crystal ball reading capabilities, though. I was too optimistic about the case outcome when I wrote back in April: “Why do I give the case a 70% chance of a favorable outcome after my recent trip?”. Or at least I should have better defined what “favorable” looks like.
Indeed, the content of the Court’s decision today and the public debate that preceded it are historical and transform queer lives in India, in the subregion, and globally. Regardless of the decision not to grant marriage rights to same-sex couples, the verdict is an unprecedented assertion of queerness and trans rights. It also does not close the door to civil unions in India.
The non heterosexual unions are entitled to protection under the Constitution [...] This court has taken on board statement of SG Tushar Mehta [Solicitor General of India] to have a committee to see the benefits that will flow to such couples
Sanjay Kishan Kaul, Justice of India
Until today, a domino effect of injustice led most LGBTQ+ people to experience Hobbes’ “solitary, poor, nasty, brutish, and short” life. There can also be a snowball effect of justice, like the one we observe in India, bringing us closer to the free and equal lives we deserve.
The acceleration of the pace of change, as illustrated by the words of the Indian Supreme Court Justices this morning, is cause for optimism in an otherwise depressing month where unspeakable acts of terrorism and war reminded us of our failed humanity. Social change is not inevitable, nor is its pace and direction. Still, the far-reaching articulation of anti-discrimination for LGBTQ+ people in the Indian Supreme Court is a reminder that it can happen. Acknowledging our existence, inherent dignity, and economic and social rights in a country that still criminalized same-sex relations in 2018 feels like vindication.
We did not get the “landmark ruling,” “earthquake decision,” and “watershed moment” we hoped for, which would have declared the Special Marriage Act (SMA) of 1954 unconstitutional because of its discrimination against same-sex people. But the tireless work of the LGBTQ+ plaintiffs, their lawyers, and their allies has led LGBTQ+ people to emerge from the shadows of the World’s largest democracy. There is no recipe for social change, but speaking to hearts and minds, honoring the resistance, and coming from a place of empathy are critical components of the Indian journey. Activists in India have always kept the dialogue open with humility and respect, offering society an opportunity to find a consensual way forward like the one articulated in court today.
May it be a lesson for the U.S. and U.K. movements stuck in echo chambers, divorced from the movable middle, and unable to foster dialogue any longer. If plaintiffs in India could advance their improbable case in what may have been a constitutional dispute but was also a court of public opinion, we should learn from them. Bringing people together, listening to them, and enrolling them in our fight for justice is harder than boycotts and inflammatory discourses, but it works.
This morning, while listening to the Chief Justice, I thought of the loving determination of the visionary Indian leaders I met throughout the years in India: Shivananda Khan (†), Saleem Kidwai (†), Astad Deboo (†), Jivi Sethi (†), Anjali Gopalan, Laxmi Tripathi, Simran Sheikh, Celina Jaitly, Ashok Row Kavi, Parmesh Shahani, Justice Ajit Shah, Arif Jafar, Srini Ramaswamy, Arvind Narrain, Radhika Piramal, Parag Mehta, Prince Manvendra Singh, and of course, Keshav Suri, Krishna Omkar and so many others allies such as my friends Kaushik Basu and Salil Tripathi.
In May 2012, I traveled to Delhi, Chennai, and Lucknow with my World Bank colleague Elizabeth Howton. At the time, a 2009 order of the Delhi High Court had struck parts of Sec 377- in what became known as the “Naz decision.” During that trip, I had tea in the modest living room of Justice Shah, who told us about the public reaction to the Court's decision. He was amazed by how the decision was received: “I thought it would not be acceptable to the Indian community,” he said when I met him. “I was surprised at the positive reaction.” I had read very little about the LGBTQ+ movement outside the US and Europe, but Shah’s was a hopeful message that our fight is universal and that our victory can be global.
On November 16th, I will be back to visit Delhi, Mumbai, and Bangalore with Pride Circle and my friend Prof. Lee Badgett to discuss the role of the private sector in continuing the journey towards the economic inclusion of LGBTQ+ people.
On that note, I know that’s too many emails from me in a week, but I wanted to share some thoughts about the Indian Supreme Court (you can read the Court verdict here). Despite falling short of granting same-sex marriage, today’s broad assertion of queerness will reverberate globally: LGBTQ+ equality has finally graduated from being perceived as a Western issue, and once again, Indian activists have shown they can lead the way.
This is only one setback in the formidable journey toward freedom for LGBTQ+ people in India, and much more needs to be done, including at the family level. Still, we can find cause for celebration and joy. In this spirit, I urge you to rewatch this 2014 Free & Equal video, “The Welcome.” A luta continua…
Marvelously written and needed words of encouragement.
This is beautifully written, Fabrice. And a bright note in some otherwise dark times.