SC’s same-sex marriage verdict acts as a formidable document upholding the Indianness of homosexuality and gender queerness

Supreme Court affirms queerness is Indian, not foreign; CJI D.Y. Chandrachud notes how prejudice is a remnant of colonial past. Five judges agree that queerness is not limited to urban, elite few. CJI says demand to legalise same-sex marriage should not be dismissed as foreign idea. Colonial laws heaped indignity on trans-persons.

Though the Supreme Court has refused to legalise same-sex marriage, the Constitution Bench judgment is a formidable step to silence hostile voices who claim that homosexuality and gender queerness are un-Indian.

“It is not queerness which is of foreign origin but the many shades of prejudice in India which are remnants of a colonial past,” Chief Justice of India (CJI) D.Y. Chandrachud observed.

The judgment bells the cat on how atypical gender identity or sexual orientation is still considered alien, urban and elite – a view put forward in court even by the Union government during the arguments of the same-sex marriage case. The Constitution Bench’s comments highlighting societal and even state discrimination on the basis of sexual orientation comes five years after the apex court decriminalised homosexuality.

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Justice Sanjay Kishan Kaul accepted non-heterosexual relationships as part of the “pluralistic social fabric” and an “integral part of Indian culture”.

All the five judges on the Bench agreed that queerness was not a phenomenon limited to the few and English-speaking urban rich. Expressions of queerness are more visible in urban centres as cities afford a degree of anonymity and access to resources, the Chief Justice reasoned. Queerness is not urban or elite. Persons of any geographic location or background may be queer, the court said in one voice.