Opinion On marriage equality, the Supreme Court has lost a golden opportunity
To have a spouse, to be a parent, to entrust and to align are some of the most basic needs of a human being. It is unfortunate that the syntax of another age has made it difficult for the interests of the LGBTQ+ community to be recognised
The principles on which the majority has proceeded suggests a narrow, technical approach which could have been well avoided when a minority right was in contemplation. At around 11 am on Tuesday, all eyes were on the Supreme Court where the Chief Justice and four of his colleagues had convened to pronounce the judgment in the batch of cases concerning what is now popularly known as “same sex marriage”. Over several weeks, lawyers had traded punches on the scope of marriage laws in India, and of whether they could include in their compass relationships among members of the LGBTQ+ community. Stemming from this were questions of other civil rights made available through the recognition of the institution of marriage — those of inheritance, adoption and property rights, as well as more run-of-the mill matters that many of us take for granted — nominees for insurance, bank accounts, medical claims, etc.
The central questions framed by the Court included: (a) whether there is a fundamental right to marriage; (b) whether the words in the Special Marriage Act could be given a gender-neutral meaning; (c) whether a civil union could be recognised under Indian law, and (d) whether an obligation could be placed on the State to recognise the relationship (and hence the rights) by law.
As Chief Justice D Y Chandrachud commenced reading his judgment, hope sprang from the petitioners’ benches. He reiterated the authority of the Court to examine the issues at hand and rejected the government’s opposition to it. The nature of queerness was the next foray, and the Court found that it had sound Indian roots, and was neither urban nor elite. Most significantly, while holding that the right to marriage was not a fundamental right, the verdict declared that the right to enter into a union was unrelated to sexual orientation and was a feature of the fundamental rights in Articles 19 and 21 of the Constitution. He then proceeded to issue a slew of directions to the various authorities to ensure that discrimination against the community could be averted.
In a brief 17 page judgment of his own, Justice Sanjay Kishan Kaul agreed with the views of the Chief Justice, and while concluding that the Special Marriage Act was in fact discriminatory as its objective to regulate only heterosexual relationships was illegitimate, he also refrained from making any interpretation that would benefit the community, noting the cascading effect it could have across various laws.
By this point, it had begun to dawn on all assembled that there were differences on the Bench as both Justices Chandrachud and Kaul had expressed their disagreements with the draft opinion that had been circulated by Justice S R Bhat.
Justice Bhat, speaking for himself and Justice Kohli, agreed with the Chief Justice that there is no fundamental right to marriage, but proceeded to conclude that a right to relationship enures under Article 21 of the Constitution. He found himself unable to go further (as the Chief Justice did) to locate a right of self-development in Articles 19, 21 and 25, or to place an obligation on the State to give recognition to civil unions by law. He aligned with the Chief Justice on the validity of the Special Marriage Act but did not believe a right of adoption and other rights could be afforded to LGBTQ+ couples through judicial diktat. In all of this, Justice Narasimha joined Justices Bhat and Kohli, who thereby constituted the majority.
For lawyers and academics, there is much material in this judgment to chew on — the rarity of the Chief Justice being a part of the minority, the deference to a government committee to consider how the community’s rights could be given effect to, the interplay of religion and sexual choice while interpreting core provisions of our Constitution, and the general nature of judicial restraint.
However, as the dust settles on the heated television debates of the evening and a new day dawns, there is a grim sense of disquiet. This group of five judges are quite easily among our most erudite, sensitive, intelligent and empathetic individuals in the Supreme Court. Yet, even here, there were differences of opinion on how a practical solution could be provided to those of the LGBTQ+ community who wished to live normal lives without harassment and unpleasant obstacles. To have a spouse, to be a parent, to entrust and to align are some of the most basic needs of a human being. It is unfortunate that the syntax of another age has made it difficult for the interests of the LGBTQ+ community to be recognised, and it is this problem that the judges have attempted to grapple with, all in different ways.
In deferring to the legislature and to the executive (the Committee suggested by the Solicitor General), it appears that the Court has lost a golden opportunity to address a human problem. For decades, when groups came before the Supreme Court canvassing for the rights of undertrials, sexually harassed women at the workplace, voters not being given access to information about candidates or regarding unregulated inter-country adoption, the lack of vigilance oversight over the CBI and vacuums in environmental regulation, the Court was swift to lay down guidelines until the law was made in that regard.
When the right to have a family, to live with dignity and the right to privacy have been read as fundamental rights under Article 21 of the Constitution, it is a little hard to believe that non-heterosexual couples (and even unmarried heterosexual ones) need to prove that the right to marriage is a fundamental right for them to have a mechanism in place to enjoy their civil rights. The principles on which the majority has proceeded suggests a narrow, technical approach which could have been well avoided when a minority right was in contemplation. In this, the Court has lost an opportunity – one that has been availed by this very institution on innumerable occasions, with less to lose.
The writer is Senior Advocate, Supreme Court of India
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