A Constitutional Bench of the Supreme Court has today let down the country by refusing to recognise the rights of marriage and adoption of same-sex couples, although five years ago, it held that the right to marry a person of one's choice is integral to Article 21 of the Constitution. It is shocking that the Court has failed to reach the logical conclusion that equality necessarily posits equal access to institutions of marriage and adoption.
The court has come to the conclusion that the right to marry is not a fundamental right, and hence, has left it to the parliament to pass a legislation in respect of same-sex marriage. The failure to recognize the fundamental right to marriage (both positive and negative) is a retrogressive interpretation not in line with individual dignity and autonomy as we understand them today. When it comes to the defence of fundamental rights, the power of the Courts cannot be constrained by the erroneous logic that Parliament is best placed to decide.
Shockingly the Supreme Court has agreed with the Union Government’s proposal that the Supreme Court ought to refrain from passing any directions and instead a high-powered Committee under a Union Cabinet Secretary could consider rights which are concomitant to the recognition of relationships such as the right to be nominated as a partner in insurance, the right to make medical decisions for a partner when the partner is unable to make such decisions etc. There is no timeframe set for this exercise nor is there any clarity about its composition. What is clear, however, is that the battle to end discrimination of queer couples has now shifted from the judiciary to the legislature.
The Union BJP government that vociferously opposed the granting of marriage equality by the Supreme Court bows to Manu’s laws and not the Constitution; it opposes marriage equality for queer couples with the belief that marriages can take place only between opposite genders. The RSS has been vocal about its opposition to same-sex marriages and has “welcomed” today’s Supreme Court verdict.
CPI(ML) believes that all people regardless of gender or sexuality have the right to choose to, or choose not to, get married. The time has come to ensure that the legislature takes proactive action to advance complete equality for the queer community not just in law, but in society, and freedom from all forms of discrimination. We believe that the arc of the moral universe may be long, but it bends towards justice and the way forward is the path of struggle.
