Does the Same Sex Marriage verdict carry forward Arundhati Katju and Meneka Guruswamy’s vision for queer rights in India? 

The Supreme Court of India has delivered a landmark judgment in a series of petitions seeking the legal recognition of same-sex marriage. The Constitution Bench, led by Chief Justice of India DY Chandrachud, reached a significant verdict after reserving the case for judgment on May 11.

What

In a departure from the traditional practice of a unanimous verdict, all judges including Justices Sanjay Kishan Kaul, S Ravindra Bhat and PS Narasimha, with the exception of Justice Kohli, issued separate judgments. 

Chief Justice Chandrachud's opinion concludes that the Supreme Court cannot either strike down or add provisions to the Special Marriage Act to include same-sex couples within the scope of the 1954 law. The responsibility for legalising same-sex marriage lies with the Parliament and state legislatures, who must enact appropriate laws to address this issue.

Takeaways

The key points highlighted in Chief Justice Chandrachud's judgment are as follows:

• Queerness is a natural phenomenon known to India since its conception and is neither urban nor elitist
• Unmarried couples, including queer couples, can jointly adopt a child
• Trans persons in heterosexual relationships have the right to marry under the existing laws including personal laws
• Right to enter into a union includes the right to choose one’s partner and the right to recognition of that union
• Police should not force queer persons to return to their family, if they do not wish to

The Supreme Court's decision, while not legalizing same-sex marriage directly, carries substantial implications for the recognition of queer individuals and their rights in India. 

While the judgment signifies a crucial step toward the acknowledgment of queer identity within the legal framework of the country; we wouldn’t have gotten nearly as far were it not for the efforts of two advocates and their landmark cashew in 2018.

Katju & Guruswamy

Arundhati Katju and Menaka Guruswamy are legal luminaries who played a transformative role in striking down Section 377 of the Indian Penal Code and decriminalizing homosexuality in India. Their efforts marked a significant milestone in the fight for LGBTQ+ rights in the country.

Arundhati Katju is a qualified lawyer practicing in India and New York. She boasts an impressive legal career, litigating numerous notable cases in Indian courts. 

• Katju received her law degree from the National Law School of India University, Bangalore and furthered her expertise with a Masters degree from Columbia University in New York, where she was recognized as a Human Rights Fellow, James Kent Scholar, and Public Interest Honoree.

Anticipation building as Senior Advocates Menaka Guruswamy and Arundhati Katju, who represented the petitioners in the Supreme Court, chat with the press before the major same-sex marriage verdict.
Video Courtesy : Law Today pic.twitter.com/9rp5YaTNAA

— Sneha Mordani (@snehamordani) October 17, 2023

Menaka Guruswamy is a Senior Advocate at the Supreme Court of India. Her legal career has been equally distinguished, with involvement in a wide range of landmark cases before the Supreme Court. 

• Guruswamy's academic background includes advanced degrees in law from the University of Oxford, Harvard Law School, and the National Law School of India University. Her scholarly achievements include a D.Phil from the University of Oxford, focused on constitutionalism in India, Pakistan, and Nepal.

Down with Section 377

The culmination of their efforts was a unanimous decision by the Supreme Court of India that overruled the regressive Koushal judgment of 2013, which had upheld Section 377 in its entirety. This momentous ruling marked a historic shift in India, decriminalizing homosexuality and ensuring that LGBTQ+ individuals could no longer be arrested for their sexual orientation.

• Katju drafted the lead petition in the case of Navtej Singh Johar and Others v Union of India in 2016. 
• Guruswamy was instrumental in the fight to strike down Section 377, presenting compelling arguments to challenge the discriminatory law.
• Together, Katju and Guruswamy, a couple in a personal relationship as well, were advocates for queer rights both in and out of the courtroom. 
• They highlighted the plight of LGBTQ+ individuals by enlisting more than two dozen co-petitioners who shared their experiences and challenges under Section 377.

Most court days you'll find me in a sari! Something about the 6 yards makes me sit up a little straighter, collect my thoughts and energy for arguments... #SareeTwitter pic.twitter.com/U9HDEyT70C

— arundhatikatju अरुंधती काटजू (@arundhatikatju) July 18, 2019

Their dedication to this cause earned them a place on the Time 100 list of the most influential people in the world in 2019, alongside recognition by other prestigious institutions for their outstanding contributions to queer rights.

Menaka Guruswamy & Arundhati Katju

🇮🇳 The two Indian lawyers – and partners – were the force behind India's decriminalisation of gay sex in 2018, inspiring other countries to do the same.

🌏Together, they were named two of the world's most influential people by @TIME in 2019. pic.twitter.com/tzVXI8eVwX

— Openly 🏳️‍🌈 (@Openly) March 8, 2022

Legacy 

Katju and Guruswamy’s legal prowess and advocacy profoundly impacted India, fostering greater acceptance and equal rights for the LGBTQ+ community. Their journey serves as a beacon of hope for ongoing progress in queer rights globally.

To the two who, when we met in 2020, made us believe that even as ‘ordinary’ queer citizens, our struggles and stories mattered. No matter what the verdict brings, in the business of ‘life’- we will always stand up for one another 🌈@arorakavita @MenakaGuruswamy @arundhatikatju pic.twitter.com/emoQt0xgDA

— Ankita Khanna (@ankitakhanna) May 11, 2023

While the Supreme Court's judgment does not directly legalize same-sex marriage, it signifies a crucial step towards greater inclusivity, non-discrimination, and legalising the queer identity. 

It underscores the need for legislative action by the Parliament and state legislatures, bringing the country closer to the vision of Katju and Guruswamy for a more inclusive and accepting society for all, regardless of sexual orientation.

It's still a long (and admittedly frustrating) road forward, before we witness the queer identity being fully embraced within the country's legal framework. But slowly and surely, that vision shall be realised.