The petitioners have noted the many points raised by the judges in favor of the gay community
New Delhi:
On the surface, the Supreme Court’s decision not to legalize gay marriage or extend adoption rights to queer couples may seem disappointing, but when you read between the lines, there’s a lot to cheer about. Petitioners in the case have also taken note of the many points raised by the judges in favor of the gay community.
What is good
The five-judge court’s refusal to legalize same-sex marriage is not based on a principled opposition to marriage equality, but on legal technicalities and judicial law concerns.
All the judges agreed that the queer couples are neither urban nor elitist, refuting an argument made by the Center during the hearing in the case.
The judges also noted the Centre’s assertion that a panel headed by the Cabinet Secretary will look into the practical issues faced by same-sex couples. The bench agreed that the problems faced by queer couples in accessing basic amenities are discriminatory in nature and said the government panel should look into this.
What do the petitioners say?
Reacting to the verdict, Geeta Luthra, senior advocate and counsel for several petitioners in the case, told news agency ANI: “Even if the right to marriage has not been given, the CJI has said that the same bundle of rights that every married couple has would be available should be for same-sex couples.”
LGBTQIA+ rights activist Harish Iyer, one of the petitioners, also noted the comments in favor of the queer community. “Even though the verdict was ultimately not in our favor, so many comments were in our favor. They have also placed the responsibility on the central government. The Solicitor General has said so many things to us, so it is important for us to go to our elected government, MPs and MLAs and tell them that we are as different as two people. There is a war going on… it may take some time but we will achieve social equality,” ANI quoted him as saying.
Anjali Gopalan, petitioner and activist, said they “have been fighting for a long time and will continue to do so.” “Nothing was done regarding adoption either. What the CJI said was very good regarding adoption but it is disappointing that other judges disagreed… This is democracy but we are denying basic rights to our own citizens,” she told ANI.
Concerns about delays
The Center had said in May that it plans to set up a panel headed by the Cabinet Secretary to look into practical issues faced by same-sex couples in accessing services such as the Provident Fund and pension. Following that filing, there has been no update on whether this panel met and held discussions on the matter.
The rights of same-sex couples are not an election issue, but any move on this issue could have significant political consequences. Furthermore, any move toward legalizing same-sex marriage will be met with resistance from society, including religious organizations.
As the country gears up for general elections next year, same-sex couples and their rights may not be high on the government’s priority list, especially given the political impact such a move could have.
Key observations today
Chief Justice of India DY Chandrachud emphasized that an individual’s right to enter into a commitment cannot be limited on the basis of sexual orientation.
The Chief Justice, however, underlined that the court must be careful not to stray into the legislative realm, saying it is up to Parliament to decide whether changes are needed in the Special Marriage Act.
The petitioners had challenged the constitutionality of certain provisions of the Hindu Marriage Act, the Foreign Marriage Act, the Special Marriage Act and other marriage laws on the grounds that they deny same-sex couples the right to marry. They had asked the court to read these provisions broadly, so that same-sex marriage would also be included. The court had earlier made it clear that it will not go into personal laws and will only look at the special marriage law.
The chief justice supported the right of same-sex couples to adopt children, a position opposed by the majority of the justices on the court.
“The law cannot assume that only heterosexual couples can be good parents. This would amount to discrimination,” he said, questioning current norms that ban gay couples from adopting children.
The Chief Justice also listed several directions for the Center and the state government, asking them to ensure that gay couples are not discriminated against and raise awareness about gay rights, among others.
Justice SK Kaul agreed with the Chief Justice and said non-heterosexual unions and heterosexual unions “should be seen as both sides of the same coin”. He also said this is an opportunity to “right historical injustices” and grant recognition to such unions.
Justice S. Ravindra Bhat read out the majority judgment differing from Chief Justice Chandrachud and Justice Kaul on the issue of adoption and agreed with the Chief Justice that “queerness is neither urban nor elitist”. However, he said it is difficult to create a right to civil union through a judicial diktat.
The court cannot create a legal framework for queer couples and it is the legislator’s job to do that as several aspects need to be taken into consideration, he added.
Ruling out any amendment to the Special Marriage Act, he said: “A gender-neutral interpretation of the Special Marriage Act is sometimes not fair and can lead to women being exposed to vulnerabilities in an unintended way.” The judge agreed that denying benefits such as the Provident Fund, pension, etc. to queer partners could have a “negative discriminatory effect”.
Opposing the minority judgment on the issue of extending adoption rights to same-sex couples, Justice Bhat said: “This is not to say that unmarried or non-heterosexual couples cannot be good parents…given the purpose of section 57, the state as parens patriae, must explore all areas and ensure that all benefits reach the children at large who need stable homes.
Justice PS Narasimha, concurring with Justice Bhat, said there is a need for a review of the legislative arrangements that exclude same-sex partners from pension, PF, gratuity and insurance benefits.
