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Synopsis

While denying legal recognition to same sex marriage, the Supreme Court on Tuesday has held that gender queerness, transgenderism, homosexuality, and queer sexual orientations are natural, age-old phenomena which have historically been present in India and have not been ‘imported’ from the ‘west.’

"If queerness is natural (which it is), it is by definition impossible for it to be borrowed from another culture or be an imitation of another culture", CJI Chandrachud has observed in his 247-page judgment.

On the assertion that variations in gender and sexual identity are largely unknown to rural India and amongst the working classes, the CJI has said, 

"Nothing could be further from the truth. While they may not use the words “homosexuality,” “queer,” “lesbian,” “gay” or any other term which populates the lexicon of English-speaking persons, they enter into unions with persons of the same sex as them or with gender queer persons; these unions are often long-lasting, and the couple performs a marriage ceremony."

The judgment adds that homosexuality or queerness is not solely an urban concept, nor is it restricted to the upper classes or privileged communities.

"People may be queer regardless of whether they are from villages, small towns, or semiurban and urban spaces. Similarly, they may be queer regardless of their caste and economic location. It is not just the English-speaking man with a white-collar PART D 90 job who lives in a metropolitan city and is otherwise affluent who can lay claim to being queer but also (and equally) the woman who works in a farm in an agricultural community", Court has noted.

It has been further noted that persons may or may not identify with the labels ‘queer,’ ‘gay,’ ‘lesbian,’ ‘trans,’ etc. either because they speak languages which are not English or for other reasons, but the fact remains that many Indians are gender queer or enter into relationships with others of the same sex.

Court has further recognized expressions of queerness may be more visible in urban centres for a variety of reasons, one of them being, cities may afford their inhabitants a degree of anonymity, which permit them to live their true lives or express themselves freely.

The Supreme Court yesterday remarked that in the exercise of the power of judicial review, it must be careful not to tread into the legislative domain.

A five-judge bench has made this observation while holding that it cannot either strike down the constitutional validity of Special Marriage Act (SMA) or read words into the SMA because of its institutional limitations.

"The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain", Supreme Court has held while refusing to grant legal recognition to same sex marriage.

The Constitution bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli has been seized with the same-sex marriage petitions since the hearing began on April 18.

Supreme Court on May 11, 2023 had reserved its verdict in the plea’s seeking legal recognition of same sex marriage, after having heard the parties over ten days.

Case Title: Supriyo@ Supriya Chakraborthy vs. Union of India & Anr. (a batch of petitions)