Rainbow, but without the Sun

The Pride Flag, held high up on the lawns surrounding the Top Court, might have to flail just a little longer. The Nation’s Apex Court on October 17th, in its decision unanmiously rejected to grant legal recognition to Queer Relationships. It is quite striking and a rare occurrence to see the Chief Justice in a Minority opinion. So far this has happened only in a dozen instances in the 1500-odd Constitution bench rulings that the CJI has been a part of. This is not what was anticipated, given the backdrop of a favoring tide in the NALSA vs Union of India (2014) and the Navtej Singh Johar vs Union of India (2018). All is not lost, and maybe this is not a full stop.

The Supreme Court’s catious and measured approach to the case signals the possibility of a middle path. The issue centred around the Constitutionality of the Special Marriage Act, 1954. This enacted legislation enables a person to marry inter-caste or inter-faith, without having to convert their religion. Unlike SMA, Hindu Marriage Act, 1955 or the Indian Christian Marriage Act, 1872 allows for solemnization of Marriage between heterosexuals of the same faith. As such regard, SMA is a crucial piece of progressive legislation which attempts to break off barriers of caste and religion in solemnizing marriages. The Petitioners had argued that the interpretation of ‘Person’ in Section 4(c) of the SMA be seen as marriage between ‘Spouses’ instead of ‘man and woman’, or alternatingly striking down the provisions of SMA which are gender-restrictive. The present interpretation is discriminatory to the same-sex couples by denying them various matrimonial benefits such as adoption, surrogacy, retirement benefits etc. Such denial of right to same-sex marriage is violative of their right to equality, right to dignity and freedom of speech and expression. So what has held the Supreme Court on a back foot to refuse them these fundamental rights?

Marriage is a Social Institution. It had existed before advent of nation states, as we know them today. This institution goes way back before the states began to recognize or legalize the institution of marriage. So why does this recognition by the State so important and desirable? Today’s nation states which promotes equality among all, by recognition of marriages, it gives way to a skew of cherishable statutory rights, guaranteed by the State itself, which makes this recognition so advantageous and yes, as the minority view rightly stated, marriage may not have attained the social and legal significance it currently has, if the state had not regulated it through law.

On the right to marriage as a fundamental right, to be embodied and to be granted state’s protection, it is important to understand its far-reaching implications. It is apt to distinguish an ‘enforceable fundamental right’ from what is ‘fundamentally important to an individual’. Marriage grants social status, and it is largely based on personal preference. Importance of something to an individual dosen’t per se justify considering it a fundamental right, however the popular opinion may seem to be in its favour. Notwithstanding anything, sexual orientation of a human being is a natural phenomenon, as existing in or arising out of human nature itself, without outside interference. As such, anything arising out of this sexual orientation, such as their right to marry or the right to choose their partner be reasonably be construed as natural right and as such a right so fundamental in itself. Nevertheless, Supreme Court has dismissed this right on mere technicalities, as I see it, and what the court makes of it remains to be seen in the coming years. Queerness is a natural phenomenon, not an elite concept.

A gender neutral interpretation of the Special Marriage Act, so as to include the queer community within its ambit, would mean for Judiciary, in effect be entering into the realm of legislation, for such recognition not only includes the interpretation of the Act, but it also affects nearly 150 enactments, such as the laws of inheritance, of adoption and many others. Many rights flow from the institution of marriage. The doctrine of separation of powers restricts the judiciary to embark on such a path.

The Top Court even so, of everything laid before it, has made an attempt to recognize the homosexual unions as having a ‘Right to relationship’. It is unclear what this entails given that right to choose a partner of your choice, right to cohabit already flows from Article 21.  Hon’ble Chief Justice, has given a list of directions to sensitize all the public authorities towards the Queer community, and they are not to be discriminated against in relation to public life. This move is commendable step, a ray of hope for the community. The minority had taken note of Solicitor General Tushar Mehta’s statement, for a committee to be constituted under the Cabinet Secretary, for the purpose of defining, elucidating the scope of  entitlements of the queer couples, and the possibility of ‘Civil Unions’ akin to those recognized by the US States before full marriage rights were granted by the state. Although it is not a social and legal institution at par of marriage, but it could be a stepping stone to full marriage rights.

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. Whether we like it or not, marriage is a privileged social institution. Justice Kaul seems to think some of the aims of marriage can be achieved by a form of civil union. Justice Chandrachud wants to grant some rights, like those of a civil union, without quite specifying what kind of a union it is. This relegates same sex union to a fugitive identity that cannot even be clearly named, let alone fully recognised. In the end, therefore, the verdict points at the larger battles that still remain to be fought - the necessity of safeguards both within 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.

Chinmay Madaan is a third year Law Student at National Forensic Sciences University, Gandhinagar.

The views expressed are Personal. Author reserves the right to depart from these views.