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‘Some opportunities pushed off to legislators’: Advocate Karuna Nundy on SC judgement
The five-judge bench unanimously gave a go-ahead to a high-powered committee proposed by the Centre to examine concerns of same-sex couples.
Supreme Court advocate Karuna Nundy, who argued from the petitioners' side during the same-sex marriage hearing, on Tuesday said that the apex court bench, while pronouncing the same-sex marriage verdict, “pushed off” some opportunities to legislators.
Nundy added that the Central government made itself clear with regard to same-sex marriage.
The Supreme Court of India refused to grant legal recognition to same-sex marriages on Tuesday, saying it was the responsibility of the Parliament and state legislatures to develop such institutions and grant them legal validation.
The five-judge bench was unanimous in giving a go-ahead to a high-powered committee proposed by the Centre in May to examine the concerns of same-sex couples and moot certain corrective measures.
“We hope that their committee will ensure that civil unions are recognised and concomitants of marriage are then brought into law at least with regards to civil unions,” said Nundy.
The 3:2 verdict of a five-judge bench stated that there were judgments which talked about the obligations of the State to look at civil unions, Nundy added.
Nundy said, “There were judgements that spoke of the obligations of the State to look at civil union, to examine the way in which the relationship of queer couples must be respected and recognised in terms of the various accoutrements to a long and solid relationship.”
She said that the unanimous judgement by the bench was that queer citizens have rights. Nundy added that while same-sex marriage was not something the SC granted the petitioners on Tuesday, the court affirmed that “the rights of queer citizens must be protected and state governments can protect them today.”
Right to Dignity
She noted that the apex Court detailed a set of legal and jurisprudential principles. She further said that while there was no fundamental right to marriage, aspects of the right to marriage have been located in various parts of the Indian constitution including Article 21, which is the Right to Dignity.
Transgender marriages
The SC affirmed that Transgender couples in heterosexual relationships have a right to marry under statutory and personal laws. Nundy said"speaking on the judgement, “Three judges said today that if in a Trans couple, one identifies as male and one identifies as female, then that marriage is recognised by law. There is no bar to that marriage.”
Speaking on the observations made by the CJI Chandrachud, Nundy said that the Chief Justice made detailed remarks on the protections to be given to queer couples. She added, “Throughout the word ‘queer’ has been used as inclusive of not just same-sex couples but also Trans couples and this is very important because it includes non-binary people.”
She added that various aspects of protection under the criminal law were also “specifically elucidated and take the law forward.”
The bench was divided in deciding how far the court could go with the majority of three judges rejecting the view that there can be a right to form civil unions and that the State would be under an obligation to ensure a bouquet of benefits for the non-heterosexual couples, as permissible under the law. The CJI and justice Kaul ruled in favour of recognising a right to form a civil union, but justices Bhat, Kohli and Narasimha emphasised that there is no unqualified right to marriage under the Constitution and thus, it cannot be recognised as a fundamental right.
Same-sex couples' right to adopt
CJI Chandrachud struck down the Central Adoption Resource Authority's (CARA) regulation that restricted queer and unmarried couples from adopting children. The five-judge bench, however, in a 3:2 verdict, ruled that non-heterosexual couples cannot be granted the right to jointly adopt a child.
Nundy said, “The Chief Justice and Justice Kaul also spoke of the right of queer couples to adopt and this is something that was extremely important because they looked at the CARA guideline and found that a loving home is something that queer couples can provide as much as any other couple. They recognised that explicitly. Unfortunately, Justice Bhat did not agree with that and this is something that should be examined more closely.”
Nundy notes the responsibility of Opposition in upholding queer rights
Speaking on the Congress party's and other State governments' responsibilities in the matter, Nundy said that they had several opportunities to bring the recognition of same-sex partners' rights into law. “There is a lot that can be done.”
“If it is the legislator's responsibility, when the opposition parties speak, those that are in power in the state governments, let us not hear mere condemnation or any detraction from anyone else's position. Let us see affirmative work to protect the rights of all citizens. If they say they stand with all citizens, let them put their money and democratic mandate where their mouth is and protect the rights of all citizens in legislation, office orders, notifications and everywhere that queer rights deserve to be protected,” Nundy said.
