On marriage equality, Supreme Court leaves the door ajar, but fails to seize the moment

The Supreme Court’s judgment on legalising same-sex marriage in India shifts the onus of the decision on to the legislature, leaves the door ajar for change. Asserting that “there is no unqualified right to marry”, the five-judge bench of the Supreme Court, headed by Chief Justice DY Chandrachud, ruled against granting constitutional validity to same-sex marriage. But if the outcome stopped well short of the expectations of a landmark judicial decision that would expand the ambit of individual rights and freedoms, in its recognition that “homosexuality or queerness” is not an “urban” or “elite” concept, that there is a pressing need for an anti-discrimination law and necessary protections, and that members of the LGBTQIA+ community have “the right to choose one’s partner”, the judgment has opened up valuable room for finding a way forward. The bench, comprising the CJI, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha, had reserved its judgment on May 11 after a 10-day hearing in April.

In 2018, in its ground-breaking reading down of the provisions of Section 377 of the Indian Penal Code, a colonial-era legislation that had effectively criminalised homosexual relations in India, the Supreme Court had drawn upon landmark decisions such as the 2014 NALSA judgment that recognised transgender individuals as the “third gender”, and the 2017 right to privacy verdict, to uphold the rights of the LGBTQIA+ community. In these last five years, there has been a slow but steady shift in attitudes, emanating from the essential spirit of emancipation underlined and reinforced by that judgment. In June this year, for instance, a Pew Research Centre survey on attitudes to same-sex marriage in 24 countries around the world showed that 53 per cent Indians are in favour of legalising same-sex marriages. Despite the Centre’s discomfort with the petitions and its argument in a 56-page-long affidavit in March that “the notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex”, hopes had been raised that the apex court would seize the moment to take a less conservative stance. But while the 3:2 judgment makes a strong case for building in safeguards for protection from discrimination — at home and by the State — it stops short of making the institution of marriage more equal by extending the provisions of the Special Marriage Act 1954 to LGBTQIA+ unions. By accepting the government’s proposal of an expert committee to look into the matter of rights for the community, the court has kept its role limited to an advisory framework, pushing the ball back into the Centre’s court for addressing the concerns of citizens seeking redress for a continuing injustice.

The court did not go far enough even as it has prised open some space and widened the room for manoeuvre for an embattled minority. Its categorical no to same sex marriage can also be said to make many of its empathetic observations on rights and discrimination seem like tokenism. In the end, therefore, the verdict points at the larger battles that still remain to be fought – the necessity of safeguards both within the home and outside, the recognition of civil unions as a possibility for the community, and the realisation, above all, that like all battles for equal rights, this, too, has a long and arduous road ahead.

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