Legal Status to Same-Sex Marriages
Current Situation:
- Same-sex marriages were recently denied legal status by a five-judge Supreme Court Constitution Bench led by Chief Justice of India (CJI) D Y Chandrachud.
- Although two judges—the Chief Justice of India and Justice Sanjay Kishan Kaul—acknowledged that homosexual couples can establish “civil unions,” they were not the majority.
- Three judges, majority ruling that the matter was solely legislative in nature.
Separation of powers: The legislature has the authority to enact laws:
- In no country in the world where homosexuality is no longer illegal, a five-year period has elapsed after the introduction of marital equality through legal reform.
- In fact, it has frequently taken years for married privileges to be granted to LGBTQ individuals, even in cases where civil partnership rights have been granted.
- To implement it would require changing a number of laws, which is the responsibility of the elected representatives of the people, not a small group of lawyers.
- Since the Indian constitution’s foundation is the division of powers, discussions in the courts must offer careful consideration and a thorough grasp of the legislative changes needed to grant LGBT individuals the right to relationships.
The Supreme Court’s most recent ruling:
- Not because the Supreme Court opposes marital equality, but rather because of several other things it does not go far enough to achieve, the ruling has left many disappointed.
- For instance, the court’s failure to perform judicial review is demonstrated by its refusal to acknowledge discriminatory acts against queer live-in relationships as viable claims and instead places the onus of accountability on the government.
- Even if the Court employs lofty ideals like empowerment, inclusion, and decency, much of the ruling’s actual significance will depend on how its orders are carried out.
- Like the Puttaswamy privacy ruling, these decisions are only as valuable as the paper they are written on if they are consistently enforced in the breach.
- The court does not provide a timeline, even though it provides some clarification regarding the nature and extent of this forum.
- When the State was ordered to “ensure that this judgement is given wide publicity through the public media… at regular intervals, and initiate programmes to reduce and finally eliminate the stigma” against LGBT people in 2018, the same court also decriminalised homosexuality.
- Furthermore, and above all, “periodic sensitization and awareness training of the plight” of LGBT people should be provided to all government personnel, including and especially police officials.
- After five years, not a single thing has been done in this area. There’s no reason to think that a committee investigating LGBT people’s demands of equality will be established and given any real direction.
What does the gay community’s future hold?
- The amount of evidence that exists to show the violence and discrimination LGBT people experience on a daily basis is far greater than what has been documented and brought before the court.
- As a result, a committee should be established with the involvement of all relevant parties in order to enhance community opinions and utilise them to promote equity, making the necessity of change evident to even the most ardent opponents.
Way Forward:
- Therefore, the onus has shifted from the legislature to the queer community, who must now organise and collaborate in order to embark on a lengthy but hopefully fruitful journey, as the SC requests legislative reform.
