EDITORIAL ANALYSIS : A grave error in the law

Source: The Hindu

• Prelims: Special Marriage Act, 1954), LGBTQ, Directive Principles of State Policy,Article 14,21 etc
• Mains GS Paper II: Government policies and interventions for development of various sectors, weaker sections of society and interventions for their development etc

ARTICLE HIGHLIGHTS

• In the Supriyo judgment the Supreme Court held that same-sex couples do not have the right to marry under the Special Marriage Act.

INSIGHTS ON THE ISSUE

Context

LGBTIQ+:

• LGBTQ is an acronym for lesbian, gay, bisexual, transgender and queer or questioning.
• These terms are used to describe a person’s sexual orientation or gender identity.

Difficulties Faced by LGBTIQ+ Community:

• Heterosexuality
• In-equality & Violence
• Deprived in Rights
• Isolation from society
• Conflict in Family itself
• Racial Discrimination

Judgment:

• The majority judgment justifies the exclusion of the Special Marriage Act: The object of the statute was not to discriminate against same-sex persons.
• It is stated that absence of a law (to regulate same-sex marriages) does not amount to discrimination.

Issues with the judgment:

• The doctrine of indirect discrimination: The discriminator cannot escape the constitutional obligation by relying on the intent or object.
  • The court must look at the impact of the law on a particular group ( Nitisha v. Union of India, 2021).
• Mere absence of a law is not sufficient to claim discrimination misconceives the core of the issue
• State has chosen to refuse to recognise one set of marriages on the ground of sexual orientation alone.
  • This is not pointedly met by the Bench.
• It does not address the issue: “The Court cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations”.
• According to the court, even if a law were plainly unconstitutional.
  • Even if there are difficulties in molding the relief, that would be a sufficient reason to retain the unconstitutional law.
  • Parliament can avoid constitutional scrutiny by drafting laws in a way that requires the court to undertake a complex interpretive exercise.
• To conceive the issue of equal rights associated with marriage as entirely that of policy is problematic.

Judicial legislation:

• In Visakha v. State of Rajasthan(1997): The court laid down detailed guidelines for how institutions must deal with complaints of sexual harassment.
• In NALSA (2014): court directed recognition of the rights of ‘third gender persons’ and issued elaborate directions for the protection of transgender persons.

How rights of LGBTQ Community were restored in India?

• Navtej Singh (2018) case: The top court read down Section 377 IPC and decriminalized consensual sexual conduct
  • Article 14: It created an unreasonable classification for same-sex persons under Article 14
  • Article 21: Violation of bodily autonomy under Article 21.
  • Article 15: Any classification that perpetuated stereotypes was violative of Article 15.
  • Sexual orientation implicated both negative and positive obligations on the state.
• NALSA (2014): The Court acknowledged the importance of sequential rights arising from ‘gender identity’ (employment, health care, education, equal civil and citizenship rights).

Special Marriage Act, 1954:

Way Forward

• The Special Marriage Act: Marriages of queer persons did not require the court to legislate.
• A creative interpretation of the law would have allowed the court to locate the right of marriage in the law, without having to take up the role of the legislature.
• Constitutional courts are significant in any democracy for they hold the executive and the legislature accountable for their actions.
• In one of the directions of the judgment: court records the submission by the Union government that a committee be chaired by the Cabinet Secretary to decide the entitlements of queer persons.
  • When a complaint of fundamental rights violation is brought before the judiciary, referring the question back to the alleged discriminator is irrational.
  • It turns a question of rights into one of benevolence.
• In Baker v. Nelson (1971), the United States Supreme Court: It declined to hold that same-sex marriage is protected under the Constitution.
  • In Obergefell v. Hodges (2015): It repelled the argument on the need to approach Parliament and said:
    • “It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process.
    • Whether the Constitution protects the right of same-sex couples to marry.”
    • India needs to desperately wait for its Obergefell

QUESTION FOR PRACTICE

Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (UPSC 2021) (200 WORDS, 10 MARKS)