On gay rights, Supreme Court moves the needle forward — but walks back on its role

For the first time, the verdict puts the ideas of civil unions, domestic partnerships and cohabitation agreements in public consciousness.

“Known by many names, the concept of civil union enjoys varying rights and entitlements in different jurisdictions. This was a legal relationship for unmarried, yet committed couples, who cohabited together and sought certain rights, and the protection of law,” the majority opinion said.

The majority verdict, authored by Justice S Ravindra Bhat, did not find merit in even allowing civil unions, but agreed that the Court’s finding is that there are limitations to what judicial intervention can resolve.

“The finding… should not be read as to preclude queer persons from celebrating their commitment to each other, or relationship, in whichever way they wish, within the social realm,” Justice Bhat wrote.

The majority view also explicitly recognised the sanctity of queer relationships. “The capacity of non-heterosexual couples for love, commitment and responsibility is no less worthy of regard than heterosexual couples,” he wrote.

“Now whether this will happen through proactive action of the State itself, or as a result of sustained public mobilisation, is a reality that will play out on India’s democratic stage, and something only time can tell,” he wrote.

It took a decade for the Supreme Court (Navtej Johar ruling in 2018) to confirm the Delhi High Court ruling which first decriminalised homosexuality (Naz foundation case in 2009). In between the arc from the Naz to Navtej case, the setbacks included a Supreme Court two-Judge bench ruling which called queer people a “miniscule minority”. However, the 2014 verdict recognising transgender people as the third gender and enumerating the rights of trans people paved the way for reopening the debate on Section 377.