By the Editor:
Many a hope would have been dashed on Tuesday after the Supreme Court refused to accord legal recognition to same-sex marriage under the Special Marriage Act, leaving it to Parliament to amend the law to allow such union. On the brighter side, the apex court granted recognition to equal rights for queer people and called for sensitisation of the general public so they don’t face discrimination. A five-judge constitution bench of the top court delivered four separate verdicts holding that there is “no unqualified right” to marriage, and same-sex couples can’t claim it as a fundamental right under the Constitution. For the LGBTQIA++ community, which had won a major legal battle in 2018 when the Supreme Court decriminalised consensual gay sex, was certainly hoping of yet another victory by way of receiving legal sanction for same-sex marriage which, however, was not to be. In fact, their another plea for right to adoption also did not find favour with the Supreme Court; they will now have to wait for what Parliament may decide.
Those from the community in the courtroom would have sensed victory was coming their way when Chief Justice D Y Chandrachud began pronouncing his judgment, the joy they would have felt turned out be short-lived by the time the gavel came down. Justice Chandrachud and Justice Sanjay Kaul were convinced same-sex couple had every right to civil union and accordingly issued a slew of directions to the government to ensure that the queer community did not face any discrimination whatsoever because of their gender identity or sexual orientation. However, the other three judges on the bench did not hold the same views thus resulting in a verdict that disallowed same-sex marriage, with the apex court pronouncing that there was no fundamental and unequivocal right to marry in India.
However, the court could have chosen to rectify the situation instead of leaving it to the government and Parliament to decide; the government after all has been opposed to the idea and it cannot be expected to have any change of heart now. The government, in fact, holds the view that same-sex marriage is merely an urban elitist idea thus narrowing down its possible wider appeal. The court though rejected it outright. “It is not only the English speaking man who lives in a metropolitan city with a white collar job who can lay claim to being queer, but it can also be a woman who works in an agricultural farm,” was what the CJI said only to be seconded by Justice Ravindra Bhat who said, “We have no hesitation in agreeing that queerness is a natural phenomenon that is neither urban or elite.” Bhat, of course, eventually disagreed with the CJI in upholding the right of queer community to civil union. So, despite the good words in favour of the community, it finally did not mean much to them in their fight for equality.