All judges agreed that the LGBTQIA community must have greater civil rights in the country as they spoke at length about the issues concerning them, the need to sensitise society and stop any victimisation of same-sex couples. (Shutterstock)
The elephant in the room is the demon of personal laws and the rationalisation of family law that has been an incomplete task since Independence
The Supreme Court’s five-judge Constitution Bench may have refused to recognise marriage as a fundamental right but no judge disagreed with the cause of gay rights in India.
All judges agreed that the LGBTQIA community must have greater civil rights in the country as they spoke at length about the issues concerning them, the need to sensitise society and stop any victimisation of same-sex couples. However, the court could not grant any extended civil rights to the group.
As expected, the community is disappointed and heartbroken. From being called ‘un-convicted felons’ by a two-judge bench of the Supreme Court, which re-criminalised homosexuality, to the apology by a five-judge bench that finally decriminalised gay sex — the community has had its share of struggles with courts and judiciary. None of the rights were given to them easily.
The judgment handed down on October 17 this year shall be remembered for its sheer helplessness. It is rare that the apex court chooses to do nothing despite recognising the sincerity of the cause.
With respect, the court has crossed the ‘Lakshman Rekha’ to step into the domain of the legislature on multiple occasions. History is full of such judicial precedents. The apex court does not shy from setting the clock back and reinstating a government (Nabam Rebia vs Deputy Speaker/ Arunachal Pradesh Judgment) or even overturning statutes that have been passed by Parliament and ratified by state legislature (Supreme Court Advocate on Record Association versus Union of India/ NJAC case).
In the interest to do justice and ensure fairness, the Supreme Court has crossed into the domain of the legislature many times. If the court did not choose to do it this time, the reasons are clearly more than the line drawn by the separations of powers under the Indian Constitution.
The arguments advanced by the Union government during the hearings seem to have been accepted in toto. The Centre cautioned the Supreme Court that any piecemeal approach to marriage equality shall only further convolute the complicated space of personal laws and family laws in India.
Apart from asserting that the subject lies in the domain of the legislature, the Centre reminded the court that state governments need to be heard before the Centre takes a call on the matter. These arguments were strongly resisted during the hearing. But the judgment seems to accept the legal impossibility cited by the Centre represented by Solicitor General Tushar Mehta.
The elephant in the room is the demon of personal laws and the rationalisation of family law that has been an incomplete task since Independence. The judgment must be taken in the right spirit and focus should be put on rationalisation of personal laws and family laws in India. It is important to note that petitioners never wanted to step into the domain of personal laws but seeking ‘equality’ in marriage for LGBTQ cannot be piecemeal.
Simply put — Equality flows. If the domain of family law under the statutory and family law scheme had equality as its guiding spirit, then granting equality would not have been very difficult. Equality has remained elusive under family laws in India. Those who argue that rights could have been granted under the Special Marriage Act seem to ignore the legal paradoxes it would have created. The judiciary is not scared of the Pandora ’s Box but the sphere of family law has been full of contradictions and awaits judicial and legislative simplification and streamlining.
The government is not the best avenue for seeking civil rights for LGBTQ couples; it has always been indifferent to the cause of the community. The government never took a clear position even when the top court heard a curative petition to decriminalise homosexuality. Instead, it left the issue to the wisdom of the Supreme Court. It is doubtful to what extent can a committee formulated by the Centre address the grievances of the community.
The Supreme Court has taken the ideological position of being sympathetic to the cause of the community. But even the minority judgment of CJI DY Chandrachud falls short of opening any legal avenue for appeal. Justice cannot be served ‘obiter dictum’. We await to see times when equality shall be the guiding spirit for the family law sphere in India and women, transgenders and the LGBTQ community shall have equal rights even in the ‘personal’ space.
Source: News18