‘The fight will continue’ for India’s LGBTQ+ campaigners for equal marriage

Utkarsh Saxena had been secretly planning the proposal for weeks. He had secretly measured his boyfriend’s finger while he was sleeping and bought a pair of matching steel rings from a Delhi market. They had been together for 15 years, having fallen in love on the university debating team, and Saxena felt optimistic that this would be an auspicious moment to ask the love of his life to marry him – the same day that India’s supreme court ruled on whether same-sex couples would be allowed to get married. Yet when the verdict came out on Tuesday, Saxena’s heart broke. Even as India’s chief justice, DY Chandrachud, spoke of India’s long history of LGBTQ+ people and their right to equality, he ruled that changing marriage laws was beyond the scope of the court and that marriage was not a fundamental right. It was the job of parliament, not judges, to make such decisions, Chandrachud said. Standing outside the court in Delhi alongside dozens of other queer couples and LGBTQ+ activists, Saxena was so devastated that he could not bring out the rings. But on returning home, he spilled to his boyfriend, Ananya Kotia, what his plan had been. “He said to me, ‘Oh, I wish you’d done it, it would have made this difficult day much easier.’ So we decided to go ahead with it anyway,” Saxena said. On Wednesday, the couple – who had felt forced to hide their relationship from some family members for more than a decade – returned to the steps of the supreme court and Saxena got down on one knee. “After I met Kotia, I felt like even if the whole world was against us, at least we had each other and that always gave us so much strength and resilience,” he said. “So this was our way of redefining and reclaiming this moment. Our relationship has been transformational for both of us and I still believe that one day we will get married in India.” The struggle for recognition of LGBTQ+ rights in India has been a long and often tortuous journey. It was only in 2018 that homosexuality was finally decriminalised by the supreme court, after two decades of protest, court cases and resistance. That was followed in 2019 by the Transgender Persons Act, which legally recognised the rights of trans people for the first time. Nonetheless, in the five years since the landmark decriminalisation ruling, societal acceptance of homosexuality in India has undeniably been on the rise. Though LGBTQ+ people still face significant harassment and stigma from police and within families, particularly in more rural and conservative areas, they have also never been more visible and represented in popular culture, media and corporations, and issues around gay rights have never been so openly discussed within homes. It was in this evolving environment that 20 petitioners, including gay and lesbian couples, transgender people and LGBTQ+ activists, decided to merge their individual lawsuits to collectively fight for the right to be married under a civil law. It went up to India’s highest court, and between April and May this year, in a marathon of hearings, a special five-strong panel of supreme court justices listened to some of the country’s top lawyers – many of them gay themselves – laying out arguments for why LGBTQ+ people deserved the same rights in love and marriage as heterosexual couples under the constitution. “It was a real glimmer of hope. The arguments for it were so logical and so strong,” said Ruchika Khanna, 46, an advertising consultant in Delhi. Like many in the LGBTQ+ community, she was glued to the hearings, which were livestreamed online and became a topic of national discussion. She, like many, had pinned her hopes on Chandrachud, who is widely seen as one of India’s most progressive chief justices in years. But the government, led by the rightwing, religious nationalist Bharatiya Janata party (BJP), had vehemently opposed the case in the courts, arguing that marriage could only be between a biological man and woman and that same-sex marriage was a violation of India’s religious and cultural norms. The same government had previously opposed the promotion of a judge to the supreme court on the basis of his sexuality. Despite not having much belief in the institution of marriage for herself, Tuesday’s ruling came as a blow to Khanna. “Maybe it was too radical in this political environment, when the government is clearly so opposed to it,” she said. “But there’s so much resilience in the community and the fight will continue.” It was a view echoed by many LGBTQ+ people, who said they were devastated but not cowed by the verdict, even as older queer couples, some in their 70s, worried they were running out of time. Some said they would be taking to the streets; others said the LGBTQ+ community needed to rally to become a louder political voice to bring about change. Parmesh Shahani, who runs Godrej DEI Lab – which works for LGBTQ+ inclusion across cultural and corporate sectors – and is the author of a book, Queeristan, emphasised that legal setbacks had been a part of the struggle for two decades. “Is it disappointing? Yes. Will we get up from this and move on? Almost certainly,” Shahani said. “Already the societal changes I’ve seen in the past five years, we could never, ever have imagined. Now the onus is on all of us to really shift hearts and minds – in civil society, in our homes and our families and our workplaces – and create an inclusive society so that whenever this comes up again, it is no longer a debate.” Much frustration among the LGBTQ+ community was directed towards the panel of judges for pushing the issues back into the lap of the BJP government, which as done little to advance LGBTQ+ rights and equality in its nine years in power, and in many cases has taken openly discriminatory positions. Zainab Patel, a transgender woman who was one of the petitioners, applauded one of the few wins that did come out of the judgment – that transgender people in heterosexual relationships could legally get married – but said overall “it seemed like the judges all abdicated their responsibility towards the community, and it was a serious letdown.” Like most, she was sceptical that the high-level committee that the government has agreed to establish, to examine LGBTQ+ rights, would do anything other than “a few cosmetic changes at the most”. Others expressed concern that the ruling had done lasting damage to the fight for civil liberties. Rohin Bhatt, one of the lawyers who fought the case and who is gay, said the judgment was “very, very dangerous” in its statement that marriage was not a fundamental right. “The court has shamelessly capitulated in the front of a majoritarian and authoritarian executive,” Bhatt said, adding that the judgment would be “rigorously critiqued” and lawyers on the case would be filing for a review petition. “It is time that queer people come out on the streets, that queer people rage, that we queer people protest,” he said. “Let us be very clear, we are not going to take this sitting down. It might take time but make no mistake: we will get these rights eventually.”