The Supreme Court of India declined the plea to grant legal recognition to same sex marriages in India and relegated the issue of ancillary rights and entitlements arising out of queer marriages to a committee constituted by the Union Government. The court refused to bite the bullet citing limitations in reading meaning into the Special Marriage Act 1954, which is a legislative function. The SC said that if it were to indulge in such practice, it would amount to judicial legislation.
Justices S Ravindra Bhat, Hima Kohli and PS Narasimha disagreed with Chief Justice of India (CJI) DY Chandrachud and Justice Sanjay Kishan Kaul on whether a civil union can be recognised under the Constitution. While CJI Chandrachud and Justice Kaul were affirmative in their opinion, the other Justices on the Bench rejected the proposition.
The silver lining of the judgment was the top court’s affirmation that queerness is not an urban elite concept and that queerness is not limited to upper classes of the society.
The top court had heard arguments presented in a clutch of petitions which sought legal recognition of the right to marry for the LGBTQI people. Four judges – namely Chief Justice of India (CJI) DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat and Justice PS Narasimha – authored separate opinions.
A Slew of Directions To End Discrimination
CJI Chandrachud passed elaborate directions to the Union Government to protect the LGBTQI+ community from discrimination and harassment. He stated that no one should be forced to go for hormonal therapy with respect to their gender. He further directed the State to take steps to protect the health and safety of same sex couples.
The benefits to queer couples such as ration card, right to nominate next of kin, etc, were also directed by the Chief Justice. All these rights and entitlements could collectively form a catalyst for change in the overall mindset of the widespread society and lead to positive assimilation of the LGBTQ+ community into the societal mainstream.
Justice Sanjay Kishan Kaul’s opinion regarding the need for an anti-discrimination law to protect queer people should set the ball rolling for the Centre to undertake active steps to ameliorate the travails of the LGBTQI+ community.
Judicial Review And Separation Of Powers
Chief Justice Chandrachud, reading out his portion of the judgment, stated that the doctrine of separation of powers did not bar the power of judicial review.
The Centre had argued that the doctrine of separation of powers, which essentially means that each organ of the state had to remain within its demarcated boundaries, prevented the court from delving into the question of whether to grant legal recognition of the right to marry of queer couples.
The court has dislodged this line of argumentation by affirming that power of judicial review would prevail over and above separation of powers. However, this rationale has still not convinced the court to read down or purposively interpret the Special Marriage Act.
On Marriage, Adoption and Transgender Rights
CJI Chandrachud explained the predicament of striking down Section 4 of the Special Marriage Act or reading it down. The top court refused to step into the domain of the legislature by reading meaning into the statute. Justice Bhat opined that marriage was a social institution and therefore the court could not grant an unqualified right to marry as there was no fundamental right to marry. Justice PS Narasimha also held that there was no unqualified right to marry.
The Chief Justice of India and Justice Kaul opined that unmarried couples and queer couples could jointly adopt a child but his opinion got overruled by the majority. The majority opinion, however, clarified that transgender persons in a heterosexual union already have the right to marry under extant laws.
It will be interesting to see how the directions passed by the court translate into reality. The Union has been unpromising on the issue of granting legal recognition to queer couples in respect of various social benefits and schemes like the provident fund, pension fund, etc. If the Central Government and the Parliament spring into action and further the wheels of justice for the queer community, it would serve as a useful reminder that the welfare and interest of each citizen deserves to be uplifted.
The apex court has invoked the soft touch approach on the issue of marriage rights of queer couples. The struggle for real freedom will continue.
Kaustubh Mehta is an advocate who practises in Delhi. Views are personal and do not represent the stand of this publication.
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