‘"The Supreme Court should have made a categorical declaration that the queer community is deprived of fundamental rights which would have been binding upon the Legislature to create laws. By simply passing the ball to the court of the legislature, the Apex court missed this opportunity," Kanav Narayan Sahgal, queer rights activist and Communications Manager at Vidhi Centre for Legal Policy says. He speaks to Outlook's Shahina K K on the Supreme Court's recent judgment refusing to legalise same-sex marriages.
I am profoundly disheartened by the verdict. Although the judgment is a split decision with three judges against and two theoretically in favour, all five judges concurred that there is no fundamental right to marriage. Furthermore, the majority of judges ruled that the provisions of CARA (Central Adoption Resource Authority), which prohibit the queer community from adopting, do not infringe upon constitutional principles. Instead, they suggested that it requires consultation and legislative action. In essence, this judgment is a comprehensive victory for the respondents. They argued that the court was not the appropriate forum for discussing the matter, which is the prerogative of the legislature. The court has essentially passed the ball to the legislature. What disappoints me is that courts are the guardians of constitutional rights, yet they did not identify a violation of the constitutional rights of the queer community. I personally cannot align with this reasoning.
While it is true that the Chief Justice of India (CJI) made some pivotal observations regarding the rights of the LGBTQ community, they hold merely theoretical significance. To have practical implications, a judgment must carry a majority ruling, which, regrettably, is not the case here. Only a majority judgment would have been binding on the Union Government. As it stands, the Union Government is not compelled to consider the observations made by the two judges, including the CJI, concerning the rights of the queer community. Nevertheless, the observations made by the two judges in favour of the LGBTQ community will likely serve as critical points of reference for academic discussions and debates.
Although lawmaking indeed falls within the purview of the legislature, the Court could have acknowledged the violation of constitutional rights. There are instances where courts have provided clear directives to the legislature regarding the formulation of laws. The example of abortion law is illustrative. The Court ruled that women have the right to abortion under Article 21, prompting an amendment. Such instances do not transgress the bounds of the division of powers. In this case, the Supreme Court had the opportunity to declare that the queer community had been deprived of their constitutional rights. Unfortunately, this did not occur. I find it challenging to comprehend the underlying reasoning, as even a non-lawyer can easily discern the discrimination at play - one group has the right to marry, while another does not. Rights should be granted without any bias regarding one's sexual orientation, as this unequivocally violates the principle of equality.
The argument made by the government that children raised by queer parents suffer from psychological problems lacks substantial support from scientific evidence. On the contrary, various studies indicate that sexual orientation is unrelated to parenting skills. Even statutory authorities hold differing views on this matter. The National Commission for the Protection of Children expressed concerns about parenting by same-sex couples being harmful to children, whereas the Delhi Commission had an entirely contrasting perspective. The Supreme Court refrained from declaring the denial of adoption rights to queer people as unconstitutional "in the best interest of the child" and deferred the deliberations and decisions to be taken by the legislature. It is the duty of jurists to interpret the law, and while they need not be researchers or experts in fields such as child rights and gender rights, they should protect constitutional rights.
I appreciate the concern that making the Special Marriage Act gender-neutral may have cascading effects on the rights of women. An analogy can be drawn with rape laws - making them gender-neutral may appear detrimental to women. However, there are alternative solutions to address this issue, and we must broaden our perspective to make laws as inclusive as possible. Even after the repeal of Section 377, the law still provides for same-sex individuals to file complaints against rape, maintaining its punitive character. In the proposed Bharatiya Nyaya Samhita, the provisions under Section 377 of the Indian Penal Code have been completely removed, which could be detrimental to the queer community, as there is no provision for complaints of rape. Ensuring gender neutrality in laws does not necessarily entail depriving someone of their rights; rather, it can promote inclusivity.
The concern that unsettling the Special Marriage Act would lead to similar disruptions in various other legislations, including adoption, succession, divorce, and matrimonial rights, is not valid. Any amendment or introduction of new legislation naturally has a ripple effect. Reforms to personal laws, the introduction of a Uniform Civil Code (UCC), or new laws such as the Bharatiya Nyaya Samhita all bring about ripple effects, which are integral to the legislative process.
