Let’s Talk Law | Impossible for Supreme Court to Recognise Gay Marriages; Movement Must Realign Itself

The Supreme Court noted on Wednesday that the center’s proposal to set up a committee headed by the Cabinet Secretary to address the “humanitarian concerns” of same-sex couples is “a very fair proposal”. The center’s proposal is to grant certain rights at an “administrative level”, without equality in marriage. The petitioners were advised to sit down with the government and decide what issues the committee could consider. This is actually a decline. But according to the current law, the foundation of equality in marriage has not been plowed. With a conflicting relationship between the Code of Constitutionally Guaranteed Fundamental Rights and the ancient personal laws, it was impossible for the Supreme Court to recognize marriage equality or to declare marriage a fundamental right.

There is a saying about parliamentary sovereignty in the United Kingdom: “If Parliament decided to kill all blue-eyed children, it would be illegal to keep blue-eyed children.” About a century later, John Stuart Mill added that, despite such absolute powers, Parliament would always restrain itself from such actions because it was run by ‘gentlemen’. Here in India, this overriding sovereignty and powers belong to the Supreme Court. Theoretically, the court has the right to take any action in the interest of justice. Ethics and constitutional conventions ordain Lakshman Rekha for Parliament in the United Kingdom or the Supreme Court in India. But apart from these dynamics of democracy, the existence of a parallel system of personal laws is an exceptional factor in India. These personal status laws have stood in the way of women’s rights, and now their complexity stands in the way of LGBT rights.

In the past few weeks, the Supreme Court has heard the issue of same-sex marriage as a matter of priority. Not just the LGBTQ community but the entire nation has observed this with curiosity and a certain degree of social anxiety. A closer look at the arguments reveals that the commission was wary of personal status laws from the start. First, it sought to limit the matter to the Special Marriage Act or the Hindu Marriage Act, but the center reminded the arbitral tribunal of Harb that the court could not avoid the matter of personal laws and that no judgment could be given without hearing the various state governments. The difficulty is rightly highlighted on the bench by the center.

The LBTQ community or petitioners have not demanded anything less than equality in marriage and have sought to have the Court declare marriage a fundamental right so that all laws can be harmonized after such a declaration. Petitioners took a rights-based approach. They demanded justice and equality before the law. While these demands could have been met through the country’s constitutional law, the unfair and unjust judicial and legislative compromise with personal status laws stands in the way. No other democracy has such a parallel system of personal status laws or such a variety. When activists from the community refer to the trip in the UK, the US or any other part of the democratic world, one has to stop and ask if any other democratic country tolerates the absence of civil law in personal laws like India.

All over the world for more than a century, the gay community’s demand for equal rights has been aligned with left-wing or socialist ideology. There is a fascinating history and background on how socialist movements opposed Christian conservation or church ideology and pushed for the social and legal emancipation of society. But inherited political alliances are changing rapidly, and many argue that society should adopt a pragmatic approach. In India, the left has not rallied for a common civil code in this country. In fact, many liberal intellectuals still oppose the abolition of personal laws in India. The demand for a unified civil code or opposition to personal laws came from the ruling Bharatiya Janata Party. There may be a case for the gay rights movement in India to reorganize and join the protest against personal laws. Until the time of uniform civil law in India, marriage equality remains elusive and theoretical. The creation of a uniform civil code and the eventual fading away of personal laws should be the first step in the pursuit of marriage equality in India.

The court could not avoid the issue of personal status laws; They cannot be uprooted by a stroke of judgment. Under these circumstances, it remains almost impossible for a powerful court to grant legal recognition to same-sex marriage in India.

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