New Delhi, Oct 21
The Supreme Court, in its recent Constitution bench ruling, did not grant any legal recognition to same-sex couples and refused to strike down or read into gender neutral "person" in place of "male" and "female" existing under the Special Marriage Act.
The top court of the country left it to the legislature to take a call on enacting the marriage equality law.
However, it asked the Union and state governments to ensure that the LGBTQ+ community is not discriminated against on the basis of their sexual orientation and queer individuals are not refused access to any goods or services.
All five judges of the Constitution Bench unanimously agreed that there exists no unqualified right to marriage and accepted the Centre’s proposal that a committee to be headed by the Cabinet Secretary will be set up to examine what administrative steps could be taken to address basic social benefit concerns relating to same-sex couples.
"Review of the impact of legislative framework on the flow of such benefits requires a deliberative and consultative exercise, which exercise the legislature and executive are constitutionally suited to, and tasked, to undertake," the apex court said.
The Supreme Court said that a marriage entered into by a transgender person – in the nature of a heterosexual relationship – must be recognised by the law. It stressed that a transgender man has the right to marry a cisgender woman under the laws governing marriage in the country, including personal laws, adding that even intersex persons who identify as a man or a woman and seek to enter into a heterosexual marriage would also have the right to marry.
However, the apex court laid down that the right to a civil union cannot be found to be a part of fundamental rights under the Constitution.
“It would not be constitutionally permissible to identify a right to a union or an abiding cohabitational relationship mirroring the institution of marriage,†said the majority opinion.
The Supreme Court said that it is "not oblivious to the concerns of the LGBTQ+ partners with respect to denial of access to certain benefits and privileges that are otherwise available only to married couples" but to mandate the government to grant recognition or legal status to ‘unions’ will violate "doctrine of separation of powers" and in effect, is a direction to amend existing statutory frameworks.
The petitioners are likely to file a review petition against the judgment rendered by the Supreme Court on October 18 and if they fail to succeed in convincing the judges to reconsider this decision, not many options will be left for the queer community.
Queer lawyer Rohin Bhatt said that there are very limited grounds like mistakes of law, error apparent on face of record, etc. for review of a decision rendered by the Supreme Court under Article 137 of the Constitution.
“Any review petition is tested on very narrow grounds. Review petitions are often dismissed in chambers and are rarely given open court hearings,†he said.
However, Bhatt believes that the decision of the Constitution Bench suffers legal and logical fallacies and is very optimistic on the outcome of the review petition, if filed.
“Look, when one is a lawyer, one cannot be anything else but optimistic when you approach the court,†he added.
He said that there are not many hopes from the government or legislature and the next steps will be taken after broader consultation within the queer community.
He said that the concept of gender binary viz. “biological male†and “biological female†contained in government pleadings is itself a reflection of the “homophobic†and “transphobic" approach in state action.
Another advocate from the LGBTQ+ community, Shivangi Sharma, pointed out that the apex court failed to lay down any timeline for the proposed high-powered committee to implement the constitutional guarantees spelled out in the judgment.
She said that not many “hopes†are there from the present Union government and recalled that many private members' Bills seeking equal rights for the queer community failed on the floor of Parliament in the past.
“Yet, private members could introduce a Bill, if there is enough pressure from the public demanding equal rights for the minority queer community,†she added.
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