By Sujit Bhar
Thousands of members of India’s large LGBTQ+ community felt deeply disappointed and let down by the Supreme Court’s recent rejection of their pleas to allow them to marry. The same sex marriage pleas failed 2-3 at the doorstep of the Court’s five-judge bench headed by the Chief Justice of India (CJI) DY Chandrachud.
While the CJI and Justice Sanjay Kishan Kaul agreed to the pleas, Justices S Ravindra Bhat, Hima Kohli, and PS Narasimha disagreed.
The pleas failed basically on two counts. The first is that the right to marry is not a fundamental right in India, which means that there remains “no unqualified right” to marriage with the exception of those that are recognised by law. That meant that no judicial deduction can flow from the Constitution. Secondly, the separation of powers imposed by the Constitution stops the Court from entering the domain of legislation, which is the job of Parliament.
Basically, the Court said that the appellants will have to approach lawmakers in Parliament for the enacting of a law and make all necessary amendments therewith. It is yet another long, arduous journey, but the community is left with no other option.
The hearings, however, yielded some positives, such as the court saying yes to marriages for transgenders in heterosexual relationships. They will also be able to adopt. As of now, heterosexual single persons can adopt (with caveats), though heterosexual unmarried couples cannot adopt.
Since the time the Supreme Court annulled Section 377 of the Indian Penal Code, decriminalising same sex associations, same sex couples have become commonplace in India, a country where gay, lesbian and other such people have always had special positions in society through the ages. These sections of society have been elaborately documented through history, as well as in mythology, and the Hindu religion has always been tolerant about them.
With the annulment of Section 377, this community has had a legal handle to deal with social discriminations, but legal obstacles remained as forbidding walls. The demand of marriage rises to get around these obstacles. Issues, such as inheritance, joint bank accounts, adoption and many other official issues come to a grinding halt and the very basic idea of a life as a modern couple becomes impossible. Recognising their union through the institution of marriage could have solved these.
Also, the Special Marriage Act would not be touched, said the bench, detailing that the Act is not unconstitutional and courts cannot strike down the Act.
As far as discrimination goes, there has been as many instances of hatred showed from society as have been from law enforcement authorities, especially the police. A small gesture from the bench has been that it has directed the law enforcers, especially the police, to “conduct a preliminary inquiry before registering a First Information Report” against a queer couple over their relationship.
Interestingly, despite Section 377 having been deleted, the police often behave as if nothing has changed from the crude, obscene medieval days. That was what forced the bench to rule that the queer community cannot be forced to return to their families or to undergo any “hormonal therapy”. These things have happened. The CJI also directed the government to ensure that inter-sex children are not “forced into sex change operations”.
The Court also directed the State to sensitize the public about queer rights and set up a hotline for them, an issue that remains a Utopian dream for India.
Amid the disappointment and heartbreaks, these are the few silver linings:
The disagreements
And there were the disagreements. While the CJI and Justice Kaul said that unmarried couples, including queer couples, can jointly adopt a child, this was completely negated by Justices Bhat, Kohli and Narasimha.
The same opinion differential was maintained in the issue of recognition, at least akin to marriage (if not marriage outright), for such couples allowing their claim to adopt children like heterosexual couples.
The basic concept of “queerness” being an “urban” or “elitist” concept was shot down by the CJI and he said that he disagreed with the centre’s contention that the petitions seeking legal validation of same-sex marriage reflected an “urban elitist” view.
Ground realities
The bench had probably an excellent set of arguments to jointly shoot down the appeals, passing the buck, so to say, to Parliament, but ground realities remain as bleak as ever. In fact, there were couples, standing just outside the apex court, who were sure that the topmost court of the country, in its wisdom, would be able to break through the legal deadlocks that have been keeping these people, young and old, on the sidelines of society. They were wrong. Collective wisdom, even in the top court of the country, is somewhat less than optimal.
In this context, it would be interesting to go through some of the CJI’s arguments:
On elitism: “It is not an English speaking man or a white collar man who can claim to be queer but equally a woman working in an agricultural job in a village… To imagine that queer people exist only in urban and elite spaces is to erase them… All those who live in cities can’t be termed as elite… Queerness can be regardless of one’s caste or class or socio-economic status.”
On the right to marry: “Incorrect to state that marriage is a static and unchanging institution… Reforms in marriage have been brought about by acts of the legislature.”
On Special Marriage Act and the separation of powers: “Withdrawal of the State from the domestic space leaves the vulnerable party unprotected. Thus all intimate activities within private space cannot be said to be beyond the state’s scrutiny… If in the present batch of petitions, this court holds that Sec 4 of the Special Marriage Act is unconstitutional because of being under-inclusive, it has to either strike it down or read it down.
“If Special Marriage Act (SMA) is struck down, it will take the country to the pre-Independence era. If the court takes the second approach and reads words into the SMA, it will be taking up the role of legislature. The court is not equipped to undertake such an exercise of reading meaning into the statute.
“Whether a change is needed… in the Special Marriage Act is for Parliament to decide. This Court must be careful to not enter into the legislative domain.”
These were the basic principles on which the case failed.