Need for pragmatism

Govt must create enabling legal framework for LGBTQIA+ rights

The unanimous rejection by the Supreme Court of the right for same-sex couples to marry has squarely pushed the ball into Parliament’s court. Two observations of the five-judge Constitution Bench are relevant and challenging at the same time. First, and importantly, it has recognised the right of gay couples, meaning same-sex couples are entitled to the same legal protections as heterosexual couples. This right, according to the apex court, is posited on the right or freedom to enter into a union. But its observation that the right to marry does not qualify as a fundamental right under Article 21(2), which refers to the right to personal liberty, has raised apprehensions among LGBTQIA+ couples of being accorded differential treatment and subordinate rights at workplaces and institutions of social interaction. The Chief Justice has explained that the court sought to avoid striking down the Special Marriage Act, which provides for inter-caste and inter-faith marriages between men and women subject to certain restrictions. He said doing so would amount to encroaching on the role of the legislature. This is what the government had argued in court.

Although the Supreme Court has chosen to follow the letter of the law, the LGBTQIA+ community is concerned that it is now up to Parliament, currently dominated by a party vocally opposed to LGBTQIA+ rights, to dictate the personal choices of individuals. These fears have been enhanced by the Centre’s contention in court that the legislative policy of India has consciously validated a union between a biological man and a biological woman. Challenges of this nature heighten the criticality of the high-powered committee that the government has agreed to set up under the Cabinet secretary. This is essentially an attempt to meet the issue halfway; the committee, the government has committed, will examine the “human concerns” of same-sex couples without legally recognising their relationship as marriage.

Despite the judicial forbearance, the Chief Justice has indicated a direction on same-sex marriage when he stated that queerness was neither urban nor elite, implying that the outcome of any legislative exercise would have a countrywide impact cutting across rural-urban, regional and income divide. He also expressed the hope that the committee would offer a building block of the future for gay rights. The imperative of setting up an enabling legal and institutional framework, thus, becomes all the more urgent because of the conservative nature of Indian society. Notably, Opposition parties have refrained from issuing statements on the Supreme Court’s verdict.

Approached with sense and sensibility, the committee has the opportunity to lay the foundation for non-disruptive change. The US started decriminalising homosexuality in 1961 but had to wait till 2015 for the Supreme Court to legalise same-sex marriage, though some states had started the process in 2004. In India, the Supreme Court decriminalised homosexuality only in 2018, endorsing a Delhi High Court judgment of 2009. In that sense, its latest judgment has devolved on the legislature a consequential responsibility to effect societal change and earn India a place in the league of socially progressive nations.