FPJ Editorial: Saying No To Same Sex Marriage

The headline in a contemporary on the judgment of the Constitution Bench of the Supreme Court said it all: lesbian, gay, bisexual, transgender, queer people will have to wait for same-sex marriage to be accorded legal recognition. How long that wait would take depends on whether the decision is left to the politicians, as the apex court order advised, or another court following Chief Justice D Y Chandrachud’s grants the LGBTQ+ community its right to marry like any heterosexual couple. Parliament is unlikely to move in the matter, given its concerns about social mores and the centuries-old sanctity of a union only between man and woman. But just as the apex court in 2018 had suo moto virtually decriminalised homosexuality, another court led by another chief justice might remove the last but important barrier in bestowing official recognition on same-sex marriages.

As Justice S K Kaul said, Constitutional morality cannot be equated with social morality. However, in this case the court did not go far enough to assert that vital difference, and chose to stop short of challenging social morality. The court however granted the same-sex couples certain rights, removing discriminatory treatment for them as against heterosexual couples. Expanding the scope of the right to privacy to legalise same-sex marriages is well within the ambit of the highest court in the land. Very often it takes a few men and women or courage and initiative to break the acceptable social mould in order to become harbingers of change. Courts have in recent times moved ahead of politicians in recognising societal changes. Whether or not the conservative majority baulks at the mere mention of homosexuality, never mind the whole abracadabra compressed into the LGBTQ abbreviation, higher judiciary can move a step forward to bestow equality on a community whose numbers seem to be substantial. As CJI Chandrachud noted in his judgment it is a mistake to think that the LGBTQ+ people live in urban centres alone, and “queerness is a natural phenomenon known to India since ancient times. It is not urban or elite”.

Admittedly, coming from the five-member bench of the CJI Tuesday’s order did cause a surprise. The large number of LGBTQ+ people assembled outside the court precincts felt let down, having reposed hope in the progressive-liberal instincts of CJI Chandrachud. But ,as we said, another court at another time will remove the last vestiges of a legal barrier in the same-sex marriage, expanding the contours of fundamental rights to include the freedom to choose one’s marriage partner and grant such same-sex unions the same rights as those available as a matter of fact to heterosexual unions. The 3:2 verdict by the apex court revealed nuanced differences between the CJI and brother judges, especially Justice S R Bhat. The latter did not agree with the CJI on granting adoption rights to same-sex couples. Justice Bhat is due to retire at the end of October but he was one with the CJI in denying legal sanction to same-sex unions. Since the court threw the ball in the court of Parliament, it was reported that the government has promised to set up a committee under the chairmanship of the Cabinet Secretary to examine the issue with all its facets. Simply put, the matter will now be put in cold storage where it will lie till another bold and forward-looking court examines afresh the issue of same-sex unions. In any case, with the Assembly and Parliamentary polls looming on the horizon the issue will recede into the background for some months.

Meanwhile, it was interesting to see the RSS, VHP and the Jamiat-Ulema-e-Hind on the same page, hailing the SC order. Even AIMIM leader and MP Asaduddin Owaisi welcomed the judgment, saying the apex court has upheld the supremacy of Parliament. Not surprisingly, the ruling party and the Opposition Congress party declined to comment. The fact that the Solicitor General hailed the judgment might give an inkling as to the ruling regime’s thinking. Another long and arduous political and legal battle lies ahead for the LGBTQ+ community before it can expect to get legal sanction for same-sex marriage and the attendant rights that flow with it for heterosexual couples.