The recent decision on Same Sex Marriages made by a panel of five judges, in the Indian Supreme Court on October 17 has caused division, among the population. This ruling specifically focused on whether same sex marriages should be recognized a topic that has been extensively debated not in India but worldwide as well. The verdict, which ultimately rejected the legalization of same sex marriage has generated a variety of responses. Triggered discussions concerning rights, social equity and the respective roles played by the judiciary and legislature in shaping our nations laws.
The Case and Petitioner’s Demands
The case of same sex marriage revolved around a petition filed by individuals who sought to interpret the Special Marriage Act (SMA) 1954 in a gender way allowing same sex couples to marry under its provisions. They argued that the current interpretation of the SMA violated articles such as Articles 14, 15, 19, 21 and 25 by prohibiting marriages between same sex couples or those who identify as gender nonconforming or LGBTQIA+.
Furthermore, they requested that gender specific terms like “husband” and “wife” be replaced with terms, like “party” or “spouse”. The individuals who filed the petition also requested the right to adopt together have the ability to make healthcare decisions on behalf of their partner and be protected by their families as consenting adults in LGBTQIA+ relationships.
Supreme Court Verdict on Same Sex Marriage
The ruling in the same sex marriage, from the Supreme Court stated that there is no right to marriage and that the court should not intervene in this matter even though it acknowledged the need to prevent discrimination against same sex couples. Justices Ravindra Bhat and Hima Kohli presented the majority opinion, which received support from Justice P.S. Narasimha. They emphasized that legislation must be enacted to acknowledge the right to union as a status to marriage or a civil partnership.
On the hand Chief Justice of India D.Y. Chandrachud and Justice Sanjay Kishan Kaul expressed a viewpoint in their minority opinion. They argued that the LGBTQIA+ community possesses a right to form relationships and it is the state’s responsibility to grant recognition to such unions. The minority judges emphasized the significance of acknowledging and providing benefits, for same sex couples under the law.
Landmark Directions from Chief Justice of India to Safeguard LGBTQ+ Rights
A series of significant directions from the Chief Justice of India in the same sex marriages are intended to safeguard the rights of the LGBTQ+ population in India. These directives encompass various aspects of non-discrimination, mental healthcare, and police procedures. Here are the key directives issued by the Chief Justice of India:
Non-Discrimination Directives for Governments
The Union Government, State Governments, and Governments of Union Territories are now instructed to:
- Make sure that no LGBTQ individuals are subjected to prejudice because of their sexual orientation or gender identity.
- Ensure that all publicly provided products and services are equally accessible to the gay community.
- Make sure people know about LGBT identities. The CJI vested the governments with an extra responsibility to make them feel that all this is natural and there is no mental disorder behind it.
- The government should set up a special helpline services that LGBTQ community members can call if they face any kind of abuse or harassment. This is like an emergency line for them.
- Establish and publicize the availability of ‘safe houses’ or Garima Grehs in all districts to provide shelter to members of the queer community facing violence or discrimination.
- Ensure that any “treatments” aimed at changing gender identity or sexual orientation offered by doctors or other individuals are stopped immediately.
- Ensure that inter-sex children are not forced to undergo operations related to their sex, particularly at an age when they cannot fully comprehend or consent to such procedures.
- Respect how people see themselves. This includes transgender individuals, hijras, and others with unique identities in India. Moreover, these people have right to declare themselves as male, female or as a third gender. None can be forced to undergo any type of medical treatments or surgeries to be legally accepted for who they are.
Mental Health Initiatives
The appropriate Government under the Mental Healthcare Act must include modules addressing the mental health of queer individuals in their programs under Section 29(1). Programs aimed at reducing suicides and attempted suicides (as envisioned by Section 29(2)) must include provisions that address queer identity.
Police Procedures
The police unit is given the following instructions:
- Police visits or summonses to queer couples’ residences with the sole intent of interrogating them about their sexual orientation or gender identity are prohibited.
- Police cannot force LGBT individuals to re-establish relations with their biological family if they choose not to.
- After confirming the validity of the allegation, the police must make sure that the freedom of any LGBT people who have reported that their family is restricting their freedom of movement is not restricted.
- When a police complaint is filed apprehending violence from the family due to the complainant’s queer identity or relationship, the police shall provide appropriate protection after verifying the genuineness of the complaint.
- Before registering an FIR against a queer couple or one of the parties in a queer relationship (when the FIR is sought in relation to their relationship), they shall conduct a preliminary investigation in line with Lalita Kumari vs. Government of U.P1 to determine if the complaint discloses a cognizable offense. The police must first determine whether the subject is an adult. If the individual has left their birthplace freely, is an adult, and is in a committed relationship with someone of the same or a different gender. Following the recording of a statement to that effect, the police must close the complaint.
These directives mark a significant step towards safeguarding LGBTQ+ rights in India and ensuring their fair and equal treatment in various aspects of life.
Queerness as a Natural Phenomenon
Chief Justice Chandrachud highlighted the natural existence of queerness, referring to previous judgments in the Navtej Singh Johar case and the NALSA case. These rulings confirmed the importance of treating members of the queer community with respect and rights. However, the Court did not go far as legalizing same sex marriage, which has raised concerns, about the advancement of LGBTQIA+ rights, in India.
Why the Court Refused to Modify the SMA?
The Court expressed concerns about the consequences of modifying the Special Marriage Act. It worried that by doing so, it would bring about a return to the prohibition on inter-caste and inter-religious unions. Furthermore, it held that the legislature, not the court, should be in charge of any SMA amendments. The Chief Justice stressed that the judiciary should avoid legislative matters, as venturing into this domain would amount to judicial legislation.
The Role of the Legislature
The recent decision of the Supreme Court in the same sex marriages case has given the responsibility, to the legislature to address the issues faced by the LGBTQIA+ community due to the lack of recognition for same sex unions. The Court has recommended solutions, such as making all marriage and family laws gender neutral creating a separate law using gender neutral language or implementing legislation, for civil unions or domestic partnerships. However, it stressed the importance of an approach in which the legislature engages in public consultation and consensus building to ensure that it reflects the desires of the people.
The Response to the Verdict
A group of people that includes activists, members of the LGBTQIA+ community and members of the general public have all reacted differently to the Supreme Court’s ruling. The primary petitioner, Supriyo Chakraborty, expressed displeasure and that the community had been left “empty-handed.” Many believe that although the Court acknowledged prejudice, it ultimately did not offer a solution. Critics contend that marriage should be considered a fundamental right for all citizens, not just a legal arrangement.
Nadika, a trans and queer writer, researcher, and teacher, lamented that the Court seemed more responsive in the NALSA case, where it raised issues related to transgender rights and urged the government to pass appropriate laws. It raises questions about the present administration’s commitment to LGBT rights because the Court in this instance appears to have referred the matter to the legislature.
Conclusion
The Supreme Court’s decision to rule against legalizing same-sex unions in India has generated discussion. Despite acknowledging the prejudice experienced by the LGBTQIA+ community, the court opted to transfer accountability to the legislature.
This ruling raises questions about how our judicial system addresses social justice concerns emphasizes the need for action and highlights the ongoing struggle for LGBTQIA+ rights in our country. As India continues to grapple with this issue public opinion and advocacy will undoubtedly play a role, in shaping the future of same sex marriage and LGBTQIA+ rights nationwide.