The Indian Supreme Court on Jan. 9 rejected a series of petitions that challenged its 2023 ruling against marriage equality

A 5-judge bench — Justices Bhushan Ramkrishna Gavai, Surya Kant, Bengaluru Venkataramiah Nagarathna, Pamidighantam Sri Narasimha, and Dipankar Datta — said there were no errors in the ruling that justified a review.

A five-judge Supreme Court bench, led by Chief Justice Dhananjaya Yeshwant Chandrachud, on Oct. 17, 2023, in a 3-2 decision ruled against recognizing the constitutional validity of same-sex marriages in India.

The court emphasized it is parliament’s rule to decide whether to extend marriage rights to same-sex couples. It also acknowledged its function is limited to interpreting laws, not creating them.

The judges on Jan. 9 stated they had reviewed the original rulings.

“We do not find any error apparent on the face of the record,” they said. “We further find that the view expressed in both the judgments is in accordance with law and as such, no interference is warranted. Accordingly, the review petitions are dismissed.”

A new bench of judges formed on July 10, 2024, after Justice Sanjiv Khanna unexpectedly recused himself from hearing the appeals, citing personal reasons. The reconstituted bench included Narasimha, who was part of the original group of judges who delivered the ruling.

“The fact that we have lost is a comma and not a full stop for equality,” said Harish Iyer, a prominent LGBTQ rights activist in India and one of the plaintiffs of marriage equality case. “The admission of review petitions is a rarity, and while we will proceed with all legal recourses available this is not the only fight.”

Some of the plaintiffs in November 2023 appealed the Supreme Court’s original decision. Udit Sood and other lawyers who had represented them in the original marriage equality case filed the appeal.

The appeal argued the ruling contained “errors apparent on the face of the record,” and described the earlier ruling as “self-contradictory and manifestly unjust.” It criticized the court for acknowledging the plaintiffs face discrimination, but then dismissing their claims with “best wishes for the future,” contending this approach fails to fulfill the court’s constitutional obligations toward queer Indians and undermines the separation of powers envisioned in the constitution. The appeal also asserted the majority ruling warrants review because it summarily dismissed established legal precedents and made the “chilling declaration” that the constitution does not guarantee a fundamental right to marry, create a family, or form a civil union.

While speaking to the Washington Blade, Iyer said this setback is a reminder that our futures can be shaped by collaboration and numerous small victories along the way.

“We will have a multi-pronged approach,” he said. “We need to speak to parents groups, teachers, police personnel, doctors, and medical staff, news reporters, podcasters, grassroots activists, activists from allied movements, our local/state and national level elected representatives. We all need to do our bit in our circle of influence. These small waves will create a force that will help us propel toward marriage equality.”

Iyer told the Blade he is confident the community will achieve marriage equality within his lifetime, offering assurance to every queer individual.

“I just hope that I am not too old to find someone to marry with by then.”

As per the Supreme Court’s rules, a ruling is reviewed only if there is a mistake or error apparent on the face of the record, the discovery of new evidence, or any reason equivalent to these two. Justices typically consider appeals without oral arguments, circulating them among themselves in chambers. The same set of justices who issued the original ruling typically rules on the appeal. In this case, however, Justices Sanjay Kishan Kaul and S. Ravindra Bhat, and Chandrachud, who were part of the original bench, had retired.

Souvik Saha, founder of Jamshedpur Queer Circle, an LGBTQ organization that conducts sensitization workshops with law enforcement and local communities, described the Supreme Court’s refusal to hear the appeal as not just a legal setback, but a significant blow to the hopes of millions of LGBTQ people across India. He said the decision perpetuates a sense of exclusion, denying the community the constitutional promise of equality under Article 14 and the right to live with dignity under Article 21.

“This decision comes at a time when global momentum on marriage equality is growing,” said Saha, noting Taiwan and more than 30 other countries around the world have extended marriage rights to same-sex couples. “The lack of recognition in India, despite the 2018 Navtej Johar judgement — decriminalizing homosexuality, leaves the LGBTQ community in a vulnerable position.”

Saha further noted in Jharkhand, a state in eastern India where socio-cultural stigmas run deep, the Supreme Court’s refusal highlights the fight for equality is far from over.

He shared the Jamshedpur Queer Circle recently supported a young lesbian couple who were disowned by their families and faced threats when attempting to formalize their relationship. Saha stressed that without legal safeguards, such couples are left without recourse, underscoring the urgent need for marriage equality to ensure protection and recognition for LGBTQ people.

“While the decision delays progress, it cannot halt the movement for equality,” said Saha. “Marriage equality is inevitable in a country where nearly 60 percent of Indians aged 18-34 believe that same-sex couples should have the right to marry (Ipsos LGBT+ Pride Survey, 2021.) This ruling highlights the need to shift our advocacy strategy towards building a stronger case for social and political change.”

Saha proposed several calls to action and strategies for moving forward.

He emphasized to the Blade the need for mobilizing the community through state-level consultations and storytelling campaigns to humanize the issue of marriage equality. Saha also highlighted the importance of developing stronger petitions, supported by case studies, international precedents, and data to effectively address judicial concerns.

Saha suggested working with allies in civil society and corporate India to push for incremental changes. He advocated for engaging policymakers in dialogue to promote legislative reforms, emphasizing the economic benefits of inclusion. Saha also called for campaigns to counter misinformation and prejudice, while establishing counseling and support groups for LGBTQ people and their families that provide guidance and support.

“Legal recognition of marriage is not just about ceremony; it is about the basic rights, dignity, and respect that every individual deserves,” said Saha. “Together, through collective action, we will ensure that the arc of justice bends in our favor.”

Indrani Chakraborty, an LGBTQ activist and mother of Amulya Gautam, a transgender student from Guwahati in Assam state, described the Supreme Court’s appeal denial as an “insensitive approach.”

“Love and commitment are emotions that can never be under boundaries. Rejection of same-sex marriage is an oppressive approach towards the LGBTQI+ community,” said Chakraborty. “This is discrimination. Marriage provides social and legal security to the couple and that should be irrespective of gender. Same-sex relationships will be there as always even with or without any constitutional recognition. The fight should go on, as I believe, this validates the intention. The community needs to stand bold, and equality be achieved.”

The Indian LGBTQ community has long grappled with systemic neglect and societal prejudices, but significant victories like the striking down of Section 377 in 2018 and progressive Supreme Court verdicts have sparked hope. The fight for equality nevertheless remains arduous.

Amid this struggle, Harish Iyer has stood out as a beacon of courage, leading the movement with unwavering commitment and inspiring others to unapologetically embrace their identities.

Iyer, with a slight smile, noted to the Washington Blade during a recent interview that he was born into privilege. As the first male child in a patriarchal society, he explained this status came with inherent advantages.

Despite being born into privilege, Iyer’s early life was marked by profound challenges.

At just 7-years-old, he endured and survived a traumatic experience of rape, an event that deeply impacted his childhood. Iyer said he was gang raped at 11, four years after a relative sexually assaulted him. Iyer told the Blade these assaults impacted his confidence.

“Children go through sexual assault but they do not understand what is happening with them,” said Iyer. “Because they are children, they do not know its language. We do not call a penis a penis, we do not call a vagina, a vagina. I am 45 years of age, and I am talking about 1987 or 1988. People had very little understanding. When you do not have language to say what it is, you don’t say about it.”

Iyer said it is easier for girls to talk about sexual assault compared to boys, and as a result it was harder for him to speak out. He also struggled living in two worlds: One of morals and fairy tales, and another filled with hardships that he tried to mask.

“I opened up about my abuse at 18, after 11 years of continuous trauma,” said Iyer. “That was a different battle altogether. It was 1998-1999, a time with little awareness about child sexual abuse. When I told my parents, my mother understood that a child could be abused. My father, however, was not supportive and didn’t understand what was happening.”

Iyer shared how these events shaped his thoughts, values, and empathy for others facing similar challenges.

At 22, he began to understand his sexuality and came out to his parents as gay. At 40, he realized his gender could be fluid and has identified as gender-fluid since then.

Iyer shared his struggles in finding a job as an openly gay man in India’s conservative society. He now works at Axis Bank, one of India’s largest private banks. Iyer said joining the bank was a unique journey — he did not have any other job opportunities at the time.

“I applied for every job on LinkedIn,” said Iyer. “Axis Bank responded. I thought I’d be unhappy there, but I needed the money, so I applied. The process took a long time, but after several interviews, I was selected. During the interviews, I realized I could be myself. People saw me for who I truly am, and that worked wonders.”

“A week after joining, I started pushing boundaries,” he added. “The chief human resources officer called me to her office. After our conversation, she held me close and said, ‘You should not have to fit in — be who you are.’ Within six months, we created a charter with policies for the LGBTQ community. It’s called ‘Come As You Are.'”

Iyer told the Blade that Chief Human Resources Officer Rajkamal Vempati was upset with him.

She felt he was free to express himself at the company, but wasn’t doing so. Iyer said Axis Bank has a dress code policy for employees — one for men, one for women, and one for LGBTQ employees that allows them to choose the gender in which they want to present themselves.

He said he never expected to see such inclusion in a private sector bank in India before joining Axis Bank.

Iyer challenged sodomy law, continues to fight for marriage equality

On the third anniversary of the Supreme Court’s 2018 ruling that struck down Section 377, the provision of the country’s penal code that criminalized consensual same-sex sexual relations, Axis Bank in 2021 introduced policies and a charter for the LGBTQ community. Iyer, a long-time LGBTQ activist, continues to fight for equal rights.

He said Axis Bank became the first private bank in India to specifically welcome customers from the LGBTQ community.

“I was invited by the Social Justice Ministry for a consultation on LGBTQ+ rights,” noted Iyer. “During the discussion, it was proposed that all banks in India should open their doors to the LGBTQ+ community.”

Iyer was one of those who challenging Section 377.

The Supreme Court struck down the colonial-era law on Sept. 6, 2018. Iyer was also a plaintiff in Supriyo v. Union of India, which sought legal recognition of same-sex marriages in India. The Supreme court heard this case in 2023.

“Culture is an evolving phenomenon,” said Iyer. “It is not static. As culture evolves, we as people need to evolve. I would like to believe that my organization is always evolving and we will get better.”

Iyer told the Blade he doesn’t have a specific game plan for the future. As one of Axis Bank’s prominent figures, however, he feels LGBTQ people are equal citizens in India.

Nineteen of India’s 28 states and eight union territories lack a functional Transgender Welfare Board, despite legal mandates.

Most of the boards that have been established in 17 regions operate without policies, compliance framework, or any substantial authority. This lack of oversight, combined with an absence of policies, has left transgender Indians without access to critical services.

India’s 2011 Census says there are 487,803 trans people in the country, yet only 5.6 percent have managed to apply for a trans identity card. These identity cards, essential for accessing government programs designed specifically for trans people, remain challenging to obtain, hindering access to crucial welfare programs.

Under the Transgender Persons (Protection of Rights) Act 2019 and its 2020 rules, 17 states and union territories, including Assam, Bihar, Chandigarh, Chhattisgarh, Gujarat, Jammu and Kashmir, Kerala, Maharashtra, Manipur, Meghalaya, Mizoram, Rajasthan, Tamil Nadu, Telangana, Tripura, Uttar Pradesh, and West Bengal, have notified the establishment of a Transgender Welfare Board. Rule 10(1) of the law, however, mandates all state and union governments must constitute a board to safeguard trans rights, promote their interests, and facilitate access to government welfare schemes.

Reports reveal most Indian states with a notified Transgender Welfare Board have held fewer than one meeting per year since their inception, raising concerns about the effectiveness of these boards. States such as Gujarat, Jammu and Kashmir, Chhattisgarh, Manipur, and Tripura have yet to disclose any updates on their boards’ activities. Notably, Gujarat’s Transgender Welfare Board, established in collaboration with UNAIDS in 2019, reportedly did not hold a single meeting until Oct. 14, according to board members. 

Only a few states and union territories saw any regular activity from their Transgender Welfare Boards in 2023; with Tamil Nadu, Kerala, Chandigarh, and Maharashtra holding just four meetings each. Other states have held fewer meetings or none at all since the board’s formation.

In states like Mizoram, the Transgender Welfare Board has not held meeting since its creation. 

In Manipur, the board has been virtually defunct since its establishment in 2017. Although the state’s reappointed the 17-member board last year, it included only minimal trans representation, with one trans woman and one trans man appointed.

The Punjab and Haryana High Court in 2022 criticized the Chandigarh Transgender Welfare Board for its insufficient activity, describing it as a mere “cosmetic feature” in a Public Interest Litigation filed by Yashika, a trans student. The court observed that the board had failed to meet regularly, hindering its ability to fulfill its duties and effectively support the trans community. 

“Although the petitioner had submitted complaints in this regard to the Union Territory Administration, no relief was granted and, thus, it is essential to ensure that bodies such as the Transgender Welfare Board acquire teeth and do not remain cosmetic features,” said the High Court. “Meetings should be held more frequently so that issues likely to arise in the future can be anticipated.”

An Amicus Curiae the Kerala High Court appointed in 2021 reported the Kerala State Transgender Justice Board had not held a single meeting that year.

Since its creation under the Social Justice and Empowerment Ministry, the National Council for Transgender Persons has held only two meetings in the past four years. Reports also suggest that budget allocations for state Transgender Welfare Boards often vary based on the ruling political party.

Maharashtra in 2020 allocated approximately $602,410 to its welfare board, but no further budget was earmarked for the board after the government changed. 

Souvik Saha, founder of Jamshedpur Queer Circle, an LGBTQ organization that conducts sensitization workshops with law enforcement and local communities, criticized the frequent inaction of Transgender Welfare Boards. 

“As an LGBTQ rights activist and head of Jamshedpur Queer Circle, I find it deeply disheartening yet unsurprising that only 5.6 percent of transgender people in India possess a transgender ID card. This figure underscores the systemic barriers faced by the transgender community when accessing their rights,” said Saha. “The example of Gujarat’s Transgender Welfare Board, which despite its collaboration with UNAIDS was dormant for nearly four years, illustrates how bureaucratic inefficiency and lack of political will stymie progress. Similarly, Mizoram’s board has yet to hold a single meeting, reflecting the widespread neglect of transgender issues.”

Souvik further said the situation in Jharkhand mirrors these national trends.

The state’s Transgender Welfare Board, though established, has faced challenges in regular functioning and proactive policy implementation. Reports from local community members highlight that meetings are infrequent and the board’s activities lack sufficient outreach. Trans people in Jharkhand, as a consequence, face barriers in securing IDs and accessing welfare schemes, contributing to a continued cycle of marginalization.

Saha told the Washington Blade that inaction within Transgender Welfare Boards stems from a lack of political will, bureaucratic hurdles, social stigma, marginalization, and inadequate representation. His organization has encountered numerous stories reflecting these challenges, with community members expressing frustration over the stagnant state of welfare boards and the difficult process of obtaining official recognition. Saha emphasized that these systemic barriers leave many in the transgender community struggling to access the support and resources they are entitled to.

“For any meaningful change, it is essential that welfare boards function effectively, with regular meetings, transparent procedures, and active community involvement,” said Saha. “The government must take urgent steps to address these issues, enforce accountability, and collaborate with local LGBTQ organizations to bridge the gaps between policy and practice.”

Meera Parida, a trans activist from Odisha, told the Blade that while the previous state government implemented numerous welfare initiatives for trans individuals, it fell short of establishing a dedicated Transgender Welfare Board.

“Back then it was Biju Janata Dal party leading the state and now it is Bharatiya Janata Party (BJP) still there is no Transgender Welfare Board in the state,” said Parida. “After the Supreme Court’s judgement, it was our thought that some radical change is coming, nothing short of that happened. Most of the governments have no interest in it and that is why this is not happening.”

Parida told the Blade it was also her failure as she was associated with the previous government and in the party, but she was not able to convince her political party to establish a welfare board for trans people. 

The Blade reached out to UNAIDS for reaction, but the organization has yet to response.