May 4, 2023
Good morning. In today’s either/view, we discuss whether the fate of same-sex marriages should be decided by Parliament or the Supreme Court. We also look at the native sports in Kerala, among other news.
📰 FEATURE STORY
Should Parliament decide the fate of same-sex marriages or the Supreme Court?
When the Supreme Court of India struck down Section 377, the queer community and allies all over India were ecstatic. Indeed, the ruling was historic and a cause for celebration. Even so, queer activists at the time exercised cautious optimism, for despite decriminalising homosexuality, India is yet to recognise queer marriages.
On April 18, 2023, the Supreme Court started hearing petitions seeking the legalisation of same-sex marriage under the Special Marriage Act of 1954 (SMA). A critical point of contention to emerge in the court was whether the judiciary should adjudicate over the decision or should it be left to Parliament. The Centre believes it should be the responsibility of elected officials, but legal experts disagree.
Context
In most countries, there are times when individual rights and the state prove antagonistic to one another. Supriyo Chakraborty and Abhay Dange realised this in 2021 when they decided to get married. They had been partners for ten years then. Supriyo was running a high fever due to the Covid19 virus, and having his beloved by his side confirmed what he already knew – Abhay was the one.
So the two men petitioned the court for the state to allow same-sex couples to get married. Why? It’s simple. Despite being together for over a decade, the couple couldn’t legally – and proudly – call each other their husband.
The two men are now the lead petitioners in the ongoing case for same-sex marriages in the Supreme Court. Twenty petitions are pending before the Supreme Court, which challenge not just the SMA, but the Hindu Marriage Act, the Foreign Marriage Act, and the Citizenship Act too.
Different religious communities maintain their own personal laws – some of which are codified in the law. The Hindu Marriage Act, which applies to marriages between Hindus, is one such personal law enacted within the Hindu Code Bills of the 1950s.
The Special Marriage Act applies to marriages between interfaith couples, the Foreign Marriage Act applies to marriages for Indian citizens living outside India, and the Citizenship Act applies to marriages of Indians with foreign nationals. But on the first day of the hearing, the court announced that it would move incrementally and steer clear of religion-based personal laws.
The court has several options with it. It can either strike down the SMA as unconstitutional for promoting heteronormativity, expand the interpretation of the existing SMA laws, or, if that proves insufficient, lay down specific guidelines that will apply when the government passes a law.
This isn’t the first time the judiciary has been asked to step in on a matter of human rights. The court did it in 2018 to strike down Section 377. In 1997, the Supreme Court laid down the Vishaka guidelines to prevent sexual harassment in the workplace because the legislature hadn’t passed a law to regulate the crime at the time.
In the recent case, which has reached its 8th day in court, the Supreme Court judges have recognised that Parliament can participate in the hearing and challenge the issues covered by the petitions. But the debate rages on outside the courts, where legal experts and politicians speculate whether the court should adjudicate or leave it to Parliament.
VIEW: Leave it to Parliament
The Centre has made it abundantly clear that it believes the decision to legalise or disallow same-sex marriages rests with the government. The legislature is a body of elected representatives who make it possible for Indians to regulate themselves. Law Minister Kiren Rijiju believes it is an essential aspect of Indian democracy. The court will be venturing past the limits of judicial review if it chooses to adjudicate.
The right to marriage isn’t absolute, argued Solicitor General Tushar Mehta. Besides, the state has legitimate interests in regulating marriage. In the past, the state has regulated several aspects of marriage, including the age of consent to marriage, prohibition of bigamy, judicial separation, and divorce.
As the 2022 Dobbs v Jackson case in the United States’ Supreme Court shows, matters that aren’t expressly mentioned in the Constitution cannot be a constitutional right. Conservationists argue that the current social ethos should be maintained instead of altering it. The centre is equipped to do so.
COUNTERVIEW: The court needs to step in
The Centre may feel inclined to preserve conventional heteronormativity, but the court must promote constitutional morality. Under Article 14, the Constitution guarantees equality before the law, and Article 15 declares that the state cannot discriminate against people based on sex. In this case, the state is discriminatory by denying the LGBTQIA+ community the right to marriage.
As discussed earlier, in 2018, the Supreme Court intervened to strike down a discriminatory colonial-era law. Though the Centre might be equipped to legislate on same-sex marriages, the government has repeatedly circumvented discussing the issue in Parliament. Arguably, it’s the Centre’s legislative inaction that has opened up a lacuna for the court to fulfil. Queer activists argue that they are tired of waiting for breadcrumbs of acceptance.
With the incumbent government’s overwhelming majority, it is doubtful whether Parliament can represent the people’s will. The Parliament doesn’t have supremacy in Indian democracy, which depends on all its branches to work in tandem. In cases where the state is discriminatory or when it neglects its citizens’ rights, the Supreme Court must step in to protect minorities.
Reference Links:
- Meet the Couple Leading the Push to Legalize Same-Sex Marriage in India – Time
- What route could the Supreme Court use to legalise same-sex marriage? – Scroll
- Parliament, not the courts, should decide on same-sex marriage – Hindustan Times
- Supreme Court same-sex marriage hearing: What is the Centre’s stance on the matter? – Indian Express
- Centre’s Views on Same-Sex Marriage Should Be Guided by Constitutional Morality, Not Social Norms – The Wire
- Interview: Centre has stalled queer marriage debate in Parliament. It must stop being hypocritical – Scroll
What is your opinion on this?
(Only subscribers can participate in polls)
a) Parliament should decide on the same-sex marriage issue.
b) The Supreme Court should adjudicate the same-sex marriage issue.
🕵️ BEYOND ECHO CHAMBERS
For the Right:
Karnataka: BJP Government’s Law Prohibiting Cow Slaughter Hurts Both Hindus and Muslims
For the Left:
Political lobbyists are pretending to be NGOs & fooling tax dept. Modi govt defanging them
🇮🇳 STATE OF THE STATES
Are crime lords really behind bars? (New Delhi) – With 25 of Delhi’s top crime lords held in three separate jails in Delhi – where the overall count of convicts exceeds 20,000 versus a holding capacity of 10,000 – the odds are stacked against security officers. The country’s largest penitentiary is not unfamiliar with gang violence, with members of several gangs attacking rivals while exploiting security flaws. According to top police officials who have arrested several of these gangsters, the jail is home to the who’s who of Delhi’s criminal underworld.
Why it matters: Tihar is home to the leaders of practically all major gangs, including Neeraj Bawana, Manjeet Mahal, Kala Jatheri, and Neetu Dabodia, as well as Irfan Chhenu and Hashim Baba. Because many of their gang members are also housed there, the jail has become a dangerous area in terms of security. These kingpins have zero fear, and they still continue their operations even while they are inside. A lot of high-profile cases have been executed by these crime lords while they were serving prison time, showing the pitiful state of law and order.
Native Kottayam sport gains global fame (Kerala) – The hashtag #Velloor_WorldCup on social media might make people wonder which world cup tournament is being played in Velloor, a small community in the Kottayam district of Kerala. However, for the people of Kottayam, nadan panthu kali, or native ball games, are their “World Cup,” “Olympics,” and many other competitions. The most thrilling athletic event in the Kottayam area is the native ball game, a traditional game commonly played in rice fields after harvest.
Why it matters: As the first season of the local ball game following the pandemic break approaches its conclusion in mid-May, playing grounds around the district have been marked with exhilarating games being played in front of an electrified crowd. The Gulf Kerala Native Ball Association organised the GCC Cup for Keralites living in five Gulf nations last week, taking the game to a ‘global’ level. It is highly unusual for a local game to become popular in Gulf nations. The competition was notable for being organised in collaboration with the Bahrain Ministry of Youth and Sports Affairs. Things like these not only expose people to new modes of entertainment but also put small areas on the global map.
Activists and union leaders raided by NIA (Jharkhand) – Several teams of the National Investigation Agency (NIA) raided the homes of social activists, trade union leaders, and a journalist in the Jharkhand districts of Bokaro, Dhanbad, and Ramgarh on Tuesday. Despite the fact that several calls to the NIA representative went unanswered, and Jharkhand police spokesperson AV Homkar feigned ignorance about the raids, a statement issued by the Coordination of Democratic Rights Organisation (CDRO) — a coalition of civil and democratic rights organisations — described the raids as a BJP-led Centre’s ploy to suppress the lawful demands and voices of and for the people of Jharkhand.
Why it matters: The trade union leaders and social activists who have been raided by the NIA are long-time supporters of marginalised people, primarily Adivasis and unorganised workers in Jharkhand. These people have been fighting for the rights of the indigenous people while making use of all the available constitutional procedures. According to them, the NIA raid is clearly aimed at silencing the peaceful, democratic, and lawful protest against the wrong policies and various forms of ongoing atrocities on the common people of Jharkhand. Late Father Stan Swamy, a veteran social worker, was also arrested on unproven charges and had later passed away while in judicial custody.
NGOs build 17 crore-litre water capacity (Gujarat) – Water shortage is a major concern in various Gujarat villages. Dr KR Shroff Foundation (KRSF) and Vicharta Samuday Samarthan Manch (VSSM) cooperated to develop participatory water management projects in 24 villages in the Sabarkantha district. As a consequence of their efforts, 17 crore litres of water have been made available in 24 communities. The entire project is supported by the Government of Gujarat, as all water management projects have been approved under its Sujalam Sufalam Yojana.
Why it matters: Water shortage was a major concern in numerous Poshina taluka villages. With lake and borewell water levels dropping to 1,000 feet, people were concerned about the supply of water for everyday usage. However, following significant measures taken to restore water bodies, primarily lakes, not only have groundwater levels been recharged, but villagers now have easy access to water for everyday needs as well as crop irrigation. In fact, in certain locations, it allows villages to harvest two crops each year, increasing their annual revenue and improving their living conditions, according to Pratul Shroff, founder of KRSF.
Who can claim to be a true ‘Sikkimese’? (Sikkim) – For months, the streets of Sikkim have seen public demonstrations. The Supreme Court’s January 13 decision, which extended the income tax exemption enjoyed by Sikkimese families who became part of India through the 1973 merger agreement, to include those who were Indian citizens at the time but lived in the Himalayan kingdom primarily for trade reasons, triggered the street protests.
Why it matters: The indigenous Sikkimese groups see the expansion of the term ‘Sikkimese’ to include people who were not on the citizens’ register during the Chogyal era (they were ‘foreigners’ at the time) as a direct threat to their identity, which was guaranteed to them by the Union of India under Article 371F of the Constitution as part of the Tripartite Agreement made on May 8, 1973, between the Indian government, the last monarch of Sikkim, Chogyal Palden Thongdup Namgyal, and the political parties of Sikkim.
🔢 KEY NUMBER
161 – India drops 11 places in the Press Freedom Index, falling to 161 out of 180 countries.