Over to the government: Lawyers on the 'unfortunate, disappointing' Supreme Court verdict on marriage equality

The Supreme Court of India on Tuesday declined to legalise same-sex marriages, and put the onus on Parliament to legislate on the matter..There was, however, some succour in the form of directions to the government to put in place safeguards to prevent discrimination against LGBTQIA+ couples.As the road towards marriage equality seems to haven taken a meandering detour with the apex court's verdict, lawyers who appeared for the petitioners expressed disappointment, but remained hopeful..Solicitor General of India Tushar Mehta “whole-heartedly” welcomed the judgment, saying that he was content with the Court's acceptance of the Central government’s stand. “All four judgments have taken the jurisprudence of our nation and the intellectual exercise which went into writing the judgments to a next level. There are very few courts in the world where one can expect this level of intellectual and scholarly judicial exercise. This judgment would be read across jurisdictions,” said Mehta..According to Mehta, the verdict balances the interests of individuals with the interests of a civilised society. “It is an important step in jurisprudential development on the question of separation of powers and provides vivid and eloquent insights into the working of the Parliament, the executive and the judiciary which complement each other strictly as per the Constitution,” he added..Senior Advocate Anand Grover, on the other hand, said,“I think Supreme Court is wrong on saying that there is no fundamental right to marry. It is unfortunate that they have arrived at this decision and I am sure it will be overturned over a period of time," he said..Senior Advocate Geeta Luthra was upset over the verdict, as she had hoped for the recognition of queer rights. The majority view held marriages to be statutory unions, having social recognition only through enactments and customary laws, she said.“Today's minority opinion will be tomorrow's majority opinion. This is what judicial precedents have taught us, and I think there is a lot of hope for the future,” she opined..“You are seeing it (recognition of same-sex marriage) in various parts of the progressive world. It has become a way of life. Now we, in India, can't close our eyes particularly because traditionally we've been a very tolerant society,” said Luthra.While acknowledging the rights conferred to queer persons through previous verdicts of the apex court, she said, “Just sometimes that right to live is not only a right to live unhampered by others or by criminality, it is also a way to live with dignity and rights. This is what they were looking for. The right to have a family, the right to bring up children, the right to adopt children, such that the other partner can call the child also their child.".With the onus of legalisation of such marriages being put on the legislature, Advocate Vrinda Grover, who appeared for one of the petitioners, wonders how the government would approach the issue. “The journey to recognition of civil unions and same-sex marriage has been rerouted through the legislature, and one will have to see how the government responds to the call for change - by a majoritarian view of the matter or a rights-based approach - and that is the challenge that lies ahead.”.She said that on a positive note, the Court has urged the State to ensure that the LGBTQIA+ community is protected from threats, coercion and violence. “To that end, all four opinions have spoken unambiguously and emphatically, and the police and other authorities must immediately be sensitised about these findings to ensure that the right to live with dignity and autonomy of LGBTQIA+ persons is respected.".Although the Court was unable to locate a fundamental right to marry, it is not to be misunderstood as a denial of the right to cohabit and be in a relationship with a person of one's choice irrespective of gender or sexuality, noted Grover.“The decisional autonomy of an LGBTQIA+ person in such matters of the private sphere has been given primacy by the Court, and the State must ensure there is no social or natal family threat or violence impeding the exercise of the said right.".Advocate Karuna Nundy pointed out that Chief Justice of India (CJI) DY Chandrachud and the second senior-most judge of the Supreme Court, Justice Sanjay Kishan Kaul, had agreed that marriages between trans people of opposite genders were to be recognised. Further, the minority opinion stated that there must be affirmative protections for those who are targeted and that the police must take strong action to protect couples that are attacked by non-state actors. While saying that she wanted to examine the four judgments passed today in detail, Nundy pointed out that at least four judges agreed on the directions on trans marriage when spouses are of opposite genders..Two judges agreed to the current Central Adoption Resource Authority (CARA) adoption guidelines being read down to recognise adoption by queer couples, noted Nundy. "That is a serious lost opportunity, because the Chief Justice and Justice Kaul had agreed to these aspects, and only one other judge needed to sign on to this,” she said.She underlined that though the minority judgment recognised the aspects of marriage rooted in various fundamental rights, all judges felt that recognising marriage was a matter for the legislature.“So the onus is now on the Central government to form a committee and examine and protect the rights of queer couples and civil unions. Significantly though, it is now for state governments of various political stripes to stand with their queer citizens — to legislate and pass office orders and notifications in areas of their constitutional competence, such as the right to health and recognising the right of a committed queer partner to make familial decisions for when their partner is incapacitated,” added Nundy..Advocate Namit Saxena, who appeared for one of the petitioners, said that the Bench had indicated during the hearings that incremental steps would be taken. He feels that the judgment was a small step in the direction of recognition of rights against discrimination of non-heterosexual couples. “However, much more was expected from the judgment and it isn't a complete delight. The Committee, which the government is required to form, should have been given a time frame to collect all data and report back. It can be counter-productive. We will have to read it thoroughly to decide the future course of action. On previous occasions, we have had wonderful judgments while the court reviewed its judgments. Let's hope for the best,” said Saxena.