Politics is the next court of appeal

The Supreme Court verdict on marriage equality is an abdication of responsibility.I woke up on Tuesday morning — like thousands of other queer Indians — anxiously awaiting the decision of a five-judge Constitution Bench that had concluded hearings on the matter months ago, in May.The mood was one of cautious optimism: after the unexpected setback in 2013 on Section 377, we were aware that judicial proceedings could often throw up unpleasant surprises. Despite this, the residual joy from the landmark 2018 verdict and a belief in the collective power of a number of high-profile lawyers appearing for petitioners in this case meant that celebrations were definitely on the cards.As the day progressed, however, optimism turned into a sinking feeling of dread before transforming into a feeling of empty horror. The grim reality of the highest court in the land shutting its door on marriage equality had finally begun to set in. medium104532808The bench rejected the recognition of marriage as a fundamental right and refused to grant queer couples the right to marry under the Special Marriage Act. Though in a 3-2 split verdict, dissenting opinions sought to institute civil partnerships to give some legal status to queer relationships and extend the right to adopt to queer couples, the majority verdict refused to intervene in the conferring of any rights as a matter of principle.As we reached the end of the gruelling live stream, peppered with anxious WhatsApp conversations and infuriated tweets, all that the LGBTQ+ community was left with was a vague directive from the court to the government to set up a committee to look into the rights and entitlements granted to queer unions. The composition of such a committee remained unclear, no timeframe was put in place, and whether the decision of such a committee would be binding upon the government remained a mystery.I don’t care much about marriage — or the courts. I have spent the last five years telling whoever will listen that the only way to bring about sustainable progress on LGBTQ+ rights in India is through politics. Yet, the Supreme Court’s uncritical passing of the buck to an unwilling government felt like a kick in the gut, a complete shirking of obligations by an institution meant to be the upholder of justice in the country.Every single petitioner appearing before the court and every single lawyer representing these diverse petitioners knew that it was the job of Parliament to legislate on marriage equality. But it’s precisely because our Parliament had failed to act on its responsibilities that they were forced to knock on the judiciary’s door.When the Chief Justice constituted a five-judge Constitution Bench to hear the matter, the expectation was that the Supreme Court would find a way to tread an uneasy path to guarantee civil liberties in the face of political apathy or even political opposition.The court’s verdict, however, indicated that LGBTQ+ people were simply not important enough. Not important enough to set judicial precedents for, and not important enough to engage in judicial interpretation “beyond a point.” After all, as Abhishek Manu Singhvi pointed out, granting marriage equality wouldn’t really involve an unprecedented move from the court. Both the basic structure doctrine and the right to privacy verdict had involved far more substantial, and extensive, cases of interpretative advances. medium104532815There were a range of stories placed before the court: Of queer couples fleeing violence from their families of birth, of partners not being able to visit each other in hospital, of parents not being recognised as the guardians of their own children. What hurt was that, after hearing all these stories, the Supreme Court decided that all it had to offer the LGBTQ+ community were mere platitudes.Although the wound of the judiciary telling us to “wait our turn” is raw, there is no time to waste. Now that the judiciary has conclusively rejected the demand for marriage equality, it is time to turn to the legislature and the executive to hold them accountable on equal rights.Moving forward, while holding the government accountable to its promise of creating a committee to examine rights for queer unions, we must go a step further and engage with politicians at the local, state, and national level. By creating wide-ranging solidarities, we must come together to raise long-stifled demands: for horizontal reservations for transgender persons, for anti-discrimination laws, for equal access to marriage.Our work has just begun. There is no giving up. There is no going back.The writer is the founder of Pink List India, India’s first archive of politicians supporting LGBTQ+ rights.