A task for the House to finish? - Hindustan Times
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A task for the House to finish?

ByHT Editorial
Oct 21, 2023 12:07 AM IST

SC spoke about judicial legislation and left it to Parliament to untie the knot on marriage equality. That won’t be easy

In its much-debated judgment, the Supreme Court refused to endorse marriage equality. All justices agreed that the refusal to sanction same-sex marriages was discriminatory, yet they did not strike down the Special Marriage Act (SMA) 1954 or the Foreign Marriage Act 1969. In his minority judgment, Chief Justice of India DY Chandrachud said, “This Court cannot either strike down the constitutional validity of the SMA or read words into the SMA because of its institutional limitations. This Court cannot read words into the provisions of the SMA and provisions of other allied laws such as Indian Succession Act and the Hindu Succession Act because that would amount to judicial legislation. The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain.” He added: “It lies within the domain of Parliament and the state legislatures to enact laws recognising and regulating queer marriages.”

While consensual same sex relationships has been decriminalised in the country, same sex marriages are still not recognised.(Pic for representation) PREMIUM
While consensual same sex relationships has been decriminalised in the country, same sex marriages are still not recognised.(Pic for representation)

The majority view does not require the government to do anything at all – but it still has an opportunity to respond empathetically and progressively. But will the government and Parliament do so? The fact is the government of the day was vehement in opposing the plea to allow same-sex marriages in the apex court. And, the party in office, the Bharatiya Janata Party, as expected, welcomed the order. The largest Opposition party, the Congress, was reluctant to reject the judgment and only the Left parties criticised it. Parliament’s majority view is a reflection of the conservative viewpoint, which rejects a reimagining of the institution of marriage on the grounds of faith, custom and culture. Which is why many in support of marriage equality hoped that the Court would offer itself as a counter-majoritarian institution and rule that the SMA and other such laws violated fundamental rights even if it risked being accused of judicial overreach. On aspects of intimate personal relations, there is no history of India’s Parliament going against the popular conservative view. All radical interventions in support of individual rights and choices, for instance, including reading down large parts of Section 377 which criminalised homosexual relations, have come from the Supreme Court; the government, to its credit, has accepted the Court as the final word in such matters.

In matters concerning collective identities and rights, though, government and Parliament both have a record of progressive legislation often without the backing of a social majority. Laws in favour of land reforms, forest rights, and against dowry, the SC/ST Prevention of Atrocities Act and legislations on the right to information, education, and rural employment guarantee were the outcome of enlightened politics rather than a response to grassroots swell. Of course, there were activist groups who campaigned for these and even convinced political parties to back them. The LGBTQ community could continue on a campaign mode and take the conversation on marriage equality to larger populations that may be prisoners of societal conventions. The Court took a principled stand on law-making, but the complex Indian situation may mean an arduous and extended struggle that involves education and advocacy before change happens.

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