The Supreme Court's refusal to grant legal status to same sex marriages under the Special Marriage Act and upholding the bar on gay couples and unmarried individuals from adopting children may disappoint the people who would want India to march hand in hand with the developed nations in having a progressive outlook on human relations. However, the approach of the apex court appears not to dismiss the demands as those of the “urban elite” as the right wing would put it; instead it has considerably expanded the rights of queer people and have asked the elected legislature and the executive to take the process forward with wider consultations, sensitisation and legislation.
A vibrant democracy does reflect, discuss and debate on societal changes and such changes at some point in time enter the legislatures so that new laws are made. Such changes are best acknowledged not by decrees and judicial orders, but at society’s pace and choosing. True, the Supreme Court is vested with enormous powers when it comes to upholding individuals' rights vis-a-vis the state apparatus, but the court, in the instant case, has acted within its limits. The Constitution does not stipulate marriage to be a fundamental right, and hence the court is right when it says it cannot uphold it and that it is in the ambit of Parliament to change the law suitably in order to validate unions of queer people.
It is now for the Union government to make good the promise it has made before the court that a committee headed by its seniormost bureaucrat, the cabinet secretary, would examine the administrative steps that could be taken to address genuine concerns of same-sex couples without going into the issue of legalising their marriage.
The biggest takeaway in practical terms for the queer community and the march towards an egalitarian society is the recognition of the equal rights of the queer people. The court has decreed that those rights should be protected and has called for sensitisation of the general public so that they don’t face discrimination.
The Chief Justice has directed the police to conduct a preliminary enquiry before registering an FIR against a queer couple over their relationship. Together, the court’s directives will bring major relief to the queer people, who at present are at the mercy of individuals representing the state, be it the policeman on the street or the university official who signs the admission form.
They have the top court of the country now on their side so that they can live their lives the way they want to. It is now incumbent upon the government, and the civil society, too, to follow up on the court’s directive on sensitisation on LGBTQIA rights. The ultimate aim is to recognise the single citizen with a right to make all choices, including on sexuality, and help them fully explore their potential.
The five-member bench was split on the question of “seeing non-heterosexual and heterosexual unions as both sides of same coin” when it comes to adoption rules and decided by a 3-2 majority that the present bar on queer couple and unmarried persons from adoption will stand. The majority judgment appears to have its basis in the definition of the institution of marriage and hence the insistence that a queer person can adopt as a single person.
The Constitution and the laws reflect the politics of the times. Courts can do only so much to get them in tune with the zeitgeist. The ball is back in the court of the Indian society and its politics.
