Arguments from Both Sides on the Supreme Court Verdict on Same-Sex Marriage

Why in News?

• The Supreme Court recently issued its much-anticipated decision rejecting requests to legalise same-sex unions and went into greater detail about the Special Marriage Act of 1954's provisions.
• As all five judges have chosen to leave it to the legislature to enact such a law, which has been a subject of deliberation since the verdict was pronounced, it is imperative to understand both sides of the argument. 

The SC Verdict on the Same-Sex Marriage

• Chief Justice of India’s (CJI) and Justice Kaul's Opinion
  • The two senior-most judges of the apex court, CJI and Justice Kaul, issued separate but concurring opinions.
  • They held that there was no fundamental right to marry for same-sex couples.
  • However, they granted declarations and issued directions to alleviate the hardships faced by same-sex couples living together.
• The Dissenting Opinion
  • The remaining three justices on the Bench (Justices Ravindra Bhat, Hima Kohli, and P S Narasimha) disagreed with the declarations and directions issued by the first two senior-most judges.
  • However, they also held that there was no fundamental right to marry for same-sex couples.
• The Majority Opinion
  • There is no unqualified right to marriage except that recognised by statute or custom;
  • Legal recognition of the right to a union can only be through enacted law;
  • Courts cannot enjoin or direct the creation of a legal or regulatory framework resulting in the conferment of legal status on same-sex couples, nor can same-sex couples be granted the right to adopt;
  • It is not possible to read provisions in existing statutes governing marriage in a gender-neutral manner;
  • The constitutional challenge to the Special Marriage Act1954, the Hindu Marriage Act1955, and the Foreign Marriage Act 1969 is rejected;
• Directions to Alleviate Hardships: Despite rejecting same-sex marriage as a fundamental right, the Court issued separate directions to the Union of India to set up a high-level committee to address the difficulties faced by same-sex couples living together, including discrimination.

Arguments Questioning SC’s Verdict

• SC Has Set Precedents in Addressing Socio-Political Matter
  • The SC’s role is critical in shaping the socio-political landscape of India through its judgments, particularly through mechanisms like public interest litigation (PIL).
  • The Court's proactiveness in addressing various social and environmental issues has been celebrated, showcasing its transformative power in Indian society.
  • Many changes resulted from the Court's interpretations of the Constitution rather than existing laws.
    • For example, from directing the serving of mid-day meals to ordering the use of CNG to combat air pollution, the SC has intervened to ensure a better life for the common person.
    • None of these directions existed in law but were fashioned by the courts through an interpretation of multiple provisions of the Constitution.
• The Court’s Decision to Rely on Judicial Restraint is Puzzling
  • Considering the Court's historical role in addressing injustices and promoting social change, the court’s decision to adopt a philosophy of judicial restraint is puzzling.
  • The majority refused to recognise the right to a civil partnership and the right of queer couples to adopt, despite acknowledging the discrimination faced by the LGBTQIA+ community.
  • In the face of such discrimination and injustice, the Court did not take a more proactive role in ensuring LGBTQ+ rights.
  • The judgment acknowledges the need to address the deprivation faced by the LGBTQIA+ community but places the onus on the legislature to rectify these issues.
  • This stance is problematic, especially given the history of parliamentary inaction in addressing LGBTQ+ rights.
• The Court Has Overlooked Its Duty to Protect the Fundamental Right of Queer Community
  • The Court's reluctance to interpret the Constitution to provide rights to the LGBTQ+ community is inconsistent with its role in promoting justice.
  • This is because it was the failure of the Parliament to address these issues that led to the petitions in the first place.
  • Court’s Decision to Place Onus on Legislature in Morally and Legally Incorrect
  • When the judiciary confronts systemic injustices and deprivations, it is not simply empowered but constitutionally obligated to intervene and provide relief.
  • This is not an instance of the judiciary overstepping its bounds but rather a constitutional duty.
  • Hence, the Court's endorsement of the government's stance is legally and morally incorrect.
• Verdict Goes Against the Idea of Framers of the Constitution
  • The framers of the Constitution were aware of the multiple forms of discrimination that existed in the country at the time of Independence.
  • They were also aware that electoral politics, while essential in a democracy, was not the surest way to achieve justice for all.
  • Therefore, the ultimate task of defending the fundamental rights of all citizens was placed upon the constitutional courts of the country.
  • The SC has been explicitly mandated to strike down laws which violate any fundamental right (Article 13).
  • Any person has the right to petition the Court for enforcement of her fundamental rights by filing a petition under Article 32, a provision that B R Ambedkar referred to as the heart and soul of the Constitution.

Arguments Supporting the SC Verdict

• Marriage Has Its Roots in Heterosexual Unions
  • The importance of marriage has existed almost since the beginning of human civilisation, but on the understanding that marriage is heterosexual: A union between man and woman; two persons of the opposite sex.
  • The premises supporting the concept of marriage were and remain fundamental:
    • That the human race must procreate in order to survive.
    • Procreation occurs only through sexual relations between a man and woman committed to a bond.
    • Over the centuries, society has recognised that bond as marriage.
• Same-Sex Marriage is Only a Recent Phenomenon
  • The same-sex marriage is a recent concept, it has gained popularity and legal recognition in several countries, particularly in North and South America and Western Europe.
  • It is legally recognised in at least 34 countries, which collectively make up only 17% of the world's population.
  • The distribution of same-sex marriage laws is uneven, with South Africa and Taiwan being the only representatives in their respective continents.
• Granting Marriage Equality is Beyond SC’s Power
  • Under India’s Constitution, the people of India, through their representatives in Parliament and in state legislatures are free to accept marriage as including a union of same-sex couples.
  • But as a matter of constitutional law, neither a Constitution Bench of five Judges, nor even the full complement of 34 judges of the SC, have the authority to do the same.
  • Under India’s Constitution, the power to make laws including laws as to marriage vest exclusively either with Parliament at the Centre or with a state legislature in a state:
    • By reason of provisions contained in Article 245 (1) and Article 246(2) of the Constitution read along with Item 5 in the Concurrent List.

A Comparative Analysis of US SC and India’s SC’s Verdict on Same-Sex Marriage

• US Supreme Court's Perspective (Obergefell v. Hodges)
  • In the Obergefell case, the US Supreme Court, with a majority opinion, ruled in favour of same-sex marriage. Chief Justice Roberts and three other colleagues dissented.
  • Chief Justice Roberts emphasised the need for the democratic process, arguing that the decision to recognise same-sex marriage should be made by elected representatives.
• Supreme Court of India's Perspective (Supriya Chakraborty v Union of India)
  • With a majority opinion of three out of five judges, the SC held that the question of whether same-sex marriage should be accepted in India rests with the country's Parliament and state legislatures.
  • It has not been recognised in any law so far.

Conclusion

• The verdict in the Supriya Chakraborty case reflects a complex and divided legal landscape regarding same-sex marriage in India.
• The Constitution establishes a delicate balance to protect the rights and liberties of all citizens.
• For now, the LGBTQIA+ community has to abide by the Court’s direction that the government should form a committee to decide the rights and entitlements of queer couples.

Q1) What is the meaning of the power to interpret the constitution?

The ultimate power to construe the Indian Constitution rests with the highest judicial institution in the country, which is the Supreme Court of India. As the pinnacle of the legal system, it possesses the authority to interpret legislation in a way that adheres to the fundamental framework of the constitution, ensuring no infringement upon its core principles.

Q2) What is the doctrine of separation of powers in India?

The concept of the Separation of Powers in India originated in the 17th century when scholars identified three distinct governmental powers: the authority to create laws, the ability to enforce them, and the responsibility to interpret them. This doctrine's fundamental principle is the prevention of any single individual from wielding all three of these powers. Separation of powers refers to the separation of powers between the three branches of government: the judiciary, legislative, and executive.

Source: The Indian Express