For many in India, Tuesday (17 October) was disappointing and a let-down after the Supreme Court declined to legalise same-sex marriage.
The five-judge Constitution bench, comprising Chief Justice of India D Y Chandrachud, Justices S Ravindra Bhat, Hima Kohli, and P S Narasimha and Sanjay Kishan Kaul, concurred that the court couldn’t take this decision and only Parliament could do so.
“The court cannot grant LGBTQ+ people the right to marry, as that is a legislative exercise,” it said.
While Tuesday’s decision was a disappointment, the apex court did offer a silver lining in its judgment, stating that that the states had the power to enact laws legalising gay marriages even in the absence of a central law.
What does this part of the judgment mean? If implemented, how will it affect gay and queer people? We break it down and give you the answers.
What did the SC say?
In the same-sex verdict delivered by the apex court, the judges had opposing views on several matters, including adoption, but they concurred that state legislatures can take a call in the absence of a central law since the Constitution grants both – states and the Union – the power to enact laws with respect to marriage.
Justices S Ravindra Bhat and Hima Kohli in the postscript of the majority judgment wrote: “The State may choose from a number of policy outcomes; they may make all marriage and family related laws gender neutral, or they may create a separate Special Marriage Act-like statute in gender neutral terms to give the queer community an avenue for marriage, they may pass an Act creating civil unions, or a domestic partnership legislation, among many other alternatives. Another consequence may be that rather than the Union Government, the State legislatures takes action and enacts law or frameworks, in the absence of a central law.”
Chief Justice Chandrachud also shared a similar order in his judgment. He wrote, “Under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognising and regulating queer marriage.”
As per a report in Bar & Bench, CJI Chandrachud had noted that states in the past had made amendments to central laws on marriage with the assent of the President since the subject was in the concurrent list.
Also read our related coverage on same-sex marriage in India
Supreme Court says no to same-sex marriage or civil unions: How are they different?
Same-sex marriage verdict: Can unmarried partners, gay couples now adopt in India?
Same-sex marriage verdict: What’s next on the road to marriage equality for India?
India says no to same-sex marriage: Which countries allow it?
Is this a way forward for the gay community?
While some gay rights activists believe this part of the judgment may offer them a way forward and a step towards marriage equality, others argue that it is unlikely that states may draft laws or amend laws on the same.
This is because during the Supreme Court hearing back in April, three states had opposed same-sex marriages, while some others, including Maharashtra, had sought more time to examine the issue.
The governments of Rajasthan, Andhra Pradesh and Assam had opposed same-sex marriage legislation, with Congress-ruled Rajasthan stated that marriage is a vital societal institution and same-sex marriage can cause disharmony, as it would not be accepted by any community or member of society.
Andhra Pradesh too held similar beliefs. The special chief secretary of the state in his response submitted to the apex court had said: After considering the above views, I am to inform that the state of Andhra Pradesh is against same sex marriage and/or persons belonging to LGBTQIA+ community.
Assam had also expressed reservations over the matter, saying that it would be prudent to maintain that legislation is the prerogative of the legislature at the Centre and its states, as it “reflects the collective wisdom of the nation and its citizens”.
States such as Manipur, Sikkim and Maharashtra and Uttar Pradesh, on the other hand, had asked for more time on the matter, stating it was a sensitive topic.
Following the US?
While the apex court refused to grant legal recognition to same-sex marriages, CJI Chandrachud and Justice SK Kaul did bat for civil unions – as was the case in the United States.
For the unaware, a “civil union” is a legal status that bestows upon same-sex couples some rights and responsibilities which are allowed to heterosexual married men and women. Civil union gives couples employment, inheritance, property and parental rights. However, there are some differences between a marriage and a civil union.
Prior to 2015, the US allowed for same-sex marriages to marry under civil union laws. But this did not provide them with formal recognition of marriage.
Civil unions were recognised only by individual states and not by the federal law in the US. Hence, while a union was recognised in one state it was not in another if it did not have similar laws. Hence couples could not enjoy the benefits of being in a civil union across the US, according to a report in The Indian Express.
The CJI in his judgment said that queer couples have a right to seek recognition of their union. He said that the freedom of queer community to enter into unions is guaranteed under the Constitution.
Justice Kaul said the legal recognition of civil unions for non-heterosexual couples represents a step towards marriage equality. He observed that queer unions “are to be recognised as a union to give partnership and love”, and held that the Special Marriage Act was violative of Article 14 for being discriminatory. However, similar to the view taken by the CJI, Justice Kaul too held that there were limitations on the court in including queer unions in the Special Marriage Act as the same was for the Parliament to decide, according to a report on LiveLaw.
With inputs from agencies
from Firstpost India Latest News https://ift.tt/Qsl9zqW
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