The Hindu Editorial Vocabulary– October 18, 2023; Day 485

The Supreme Court of India’s refusal to accord legal recognition to marriages between persons of the same sex is a huge legal setback (a difficulty or problem that stops you progressing as fast as you would like) to the queer (denoting or having a gender or sexual identity that does not correspond to traditional norms) community in the country. Given the progress in law in recent years and the deepening of the meaning of individual rights, there was widespread expectation that the five-judge Constitution Bench would give the Special Marriage Act (SMA), a law that allows any two people to marry, a gender-neutral interpretation to include people belonging to the same sex. Over the years, the amplitude (extent) of Article 21 of the Constitution has been expanded to cover the rights of privacy, dignity and marital choice, but the highest court has stopped short of (not go as far as (some extreme action)) the extra step needed to allow marriages or civil unions that are not heterosexual (A person having a sexual orientation to persons of the opposite sex). All five judges have chosen to leave it to the legislature to enact such a law. Chief Justice of India D.Y. Chandrachud and Justice Sanjay Kishan Kaul have ruled that queer couples have a right to seek recognition for their union, but declined to read down the provisions of the SMA to that effect. On the other hand, Justices S. Ravindra Bhat, Hima Kohli and P.S. Narasimha reject the position, holding that any such recognition can only be based on statute (law). In effect, the Court has accepted the government’s view that any move to legalise same-sex marriages will fall in the legislature’s domain.

In concluding that there is no fundamental right to marry, the Court has negated (Be in contradiction with) the expectation that it would not allow discrimination against same-sex couples in the marital domain to continue. Marriage is indeed a social institution, with its own legal requirements and conditions for what constitutes a valid marriage. The right to seek social and legal validation through marriage is a matter of individual choice protected by the Constitution, but the Court still views it as being subject to statutory limitations. The majority disfavours the position that queer couples have a right to adopt children, but agrees with the minority that there is no bar on transpersons (persons whose gender identity, gender expression or behavior does not conform to that typically associated with the sex to which they were assigned at birth) entering into heterosexual marriages. There is no disagreement among the judges about the right of such same-sex couples to cohabit ((used about a couple) to live together as if they are married) and be free from coercion and threats. Given that large sections of India may be opposed to the legalisation of same-sex marriages on religious and cultural grounds, the possibility of Parliament taking the initiative to do so is quite bleak (Offering little or no hope). The LGBTQIA+ community may now have to take heart (to gain courage or confidence) from the Court’s direction that the government should form a committee to decide the rights and entitlements of queer couples. The community, however, still has quite a struggle ahead before the law catches up (to bring or get up to date) with its yearning (Have a desire for something or someone who is not present) for equality.

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