Almost five years after the abolishment of section 377, we are still unable to speak aloud about something like same-sex marriage. The Supreme Court has taken a step forwards in this direction by forming a five-judge constitution bench composed of Chief Justice of India D. Y. Chandrachud, and Justices S. K. Kaul, Ravindra Bhat, Hima Kohli and P. S. Narasimha. This bench has been formed to discuss the petitions filed regarding same-sex marriage. Although the Center has expressed its opposition to the trial by quoting that the creation of a new social institution is beyond the scope of judicial determination, it has not even shielded itself from stating that appeals for same-sex marriage are nothing other than an “urban elitist views for the purpose of social acceptance”.
Where there are real lawyers discussing the need and want for this reform with good reason and evidence, our government is still adamant to stand by the 100-year-old definition of marriage. Senior Advocate Mukul Rohatgi mentions, “I was amazed to hear that we (LGBTQ+) are not equals, and we need to be equal to the stigmatised lot, and that is why our court should step in, and that is why even after the Article 377 judgment, we are here… That is why a state is telling us here that we are not equals. Well, we became equal in the 1950s. Please see the preamble.”
We can say that the Centre is correct in saying, “A decision by the court in recognizing the rights of same-sex marriage would mean a virtual judicial rewriting of an entire branch of law.”
But in the very same statement, it is wrong to undermine the responsibility and power of the judiciary about the cause by saying, “The court must refrain from passing such omnibus orders. Proper authority for the same is appropriate legislature… Given the fundamental social origin of these laws, any change to be legitimate would have to come from the bottom up and through legislation… A change cannot be affected by judicial fiat, and the best judge of the pace of change is the legislature itself.”
Insensible questions like the problem of custody after same-sex divorce have been raised in court, and equally sensible opinions like introducing marriage between two consenting adults along bodily gender and sex spectrum into Special Marriage Act have been brought to notice. In conclusion, this discussion in the Supreme Court has been raising awareness and attention to details of the issue. But because of the Centre’s extremist opinion, it has become a fight about who should decide – legislation or judiciary instead of a quest for reform.
Only time will tell if the ‘urban elitist view for social acceptance’ will find its course or the Centre’s rural elitist view of love will prevail…
