There should be a clear conclusion from Tuesday's Supreme Court judgment that seems to be missing in the general public and even the LGBTQI+ communities in this country. I would firstly say that the Supreme Court, has for the first time, abdicated its responsibility and duty to protect the rights of a minority. Besides side stepping the main issues regarding same-sex marriage, the bench by three to two has pronounced the following:
No legal recognition for same sex marriages.
No recognition either constitutional or fundamental to the right for even civil unions.
The ball has been thrown into the Centre's court to set up a “high powered committee” headed by the Chief Secretary to examine the concerns of same sex couples. This is exactly like the Women’s Reservation Bill and the ancient Police Reforms Bill which are today sitting as relics of political procrastination.
No adoption rights for queer couples
The conclusion is that the Supreme Court has categorically ruled by a 3-2 majority against the recognition of same sex marriages.
However, Four out of the five judges have agree to direct the Union of India to constitute a timeline to examine whether queer and unmarried couples’ have the right to adopt. CJI Chandrachud and Justice S.K.Kaul hold that queer couples should have the right to adoption
However, the other three judges disagreed and upheld CARA regulations which specially exclude queer couples and unmarried couples
This is a unholy mess. I never believed that a bench of the Supreme Court would tie itself in such a knot after giving a clear and equivocal judgement in September 2018 on reading down Section 377 of the IPC. Many of the conclusions from that judgement indicate that the LGBTQI communities would automatically go on to get citizenship entitlements like the right to marry and adopt. These are simple rights that should not have confused any judge. And yet what the judges have done is kicked the ball up to the Executive and Parliament. This is most disappointing because it clearly shows a total abdication of the process of law.
Though it is clear that Laws can be made only by parliament, it is also important that the Supreme Court fulfil all Constitutional obligations which flow from the interpretation of the Laws as they stand. Reading down 377 was one such occasion. One Section 377 was read down, the LGBTI communities were entitled to all the citizenship enbtitlemtns which the common heterosexual citizenry enjoy. His is not rocket science.
It is sad that the Supreme Court has failed the most marginalised and vulnerable communities in the country. That is the sum and substance of today's disappointing judgment of the fivemember bench of the Supreme Court.
Ashok Row Kavi is one of the foremost leaders of the country's queer community. A former journalist, he had dedicated his life to do advocacy for the rights of his community.