A ”judicial punch in the gut” is how advocate and gender rights activist Rohin Bhatt described the Supreme Court's verdict in the marriage equality case. This resonated with many of us in the queer and trans community.
While two judges favoured a partial solution of ‘civil unions’ that no petitioner had asked for, a binding majority of three judges could not find the judicial fortitude to go even that distance.
The majority held that denying marriage to queer persons has a discriminatory impact that violates Article 15 of the Constitution – and that the executive or legislature ought to step in to prevent injustice.
However, it went to lengths to stress that this does not mean there is a right for citizens to any kind of legal status or entitlement, and no obligation for the State to provide anything either.
We have a finding of what might be described as an unconstitutional state of affairs, with a court unwilling to say there is a duty to correct it.
'We Are Here to Stay, So Give Us Our Rights'
When the decision in Navtej Singh Johar – the case that read down Section 377 of the Indian Penal Code (IPC) came out – we rejoiced not just because that particular crime was removed, but perhaps more importantly because the judgment affirmed the dignity and freedom of queer people.
It explained how sexual orientation and gender identity were to be read in the Constitution, including under the right to equality, the freedom of expression, the right to life with dignity and the right to privacy.
The judgment, therefore, provided crucial impetus for why the State should protect queer people’s autonomy and sent a message to society: that we were here to stay, so give us our rights.
It is this secondary role of a constitutional law judgment that I want to focus on. Since all five judges in the Marriage Equality case expressed in eloquent terms their ‘empathy’ for the queer community that continues to face unconstitutional discrimination, one might expect that there is something useful for us still in this judgment.
However, it appears the majority has dashed most of these secondary gains as well.
Transgender Persons (Protection of Rights) Act 2019
There was one positive outcome that there was unanimous agreement on, which was the confirmation that a transgender man or woman in a binary relationship can marry under existing laws.
This not just affirms existing practice and the Madras High Court judgment in Arunkumar that allowed a transgender woman and a man to marry under the Hindu Marriage Act, but confirms that this extends to all personal laws, which will provide greater certainty to transgender people in heterosexual relationships.
In reaching this conclusion, Chief Justice Chandrachud (with unanimous support), lays out a clear guide for the use of the Transgender Persons Act 2019 (‘Trans Act’). The opinion stresses that section three provides for protection against discrimination in various fields including education, employment, access to public goods and services and more, from both private and public establishments or any other person.
It also points out an obvious lacuna- that there is no robust resolution mechanism, besides a duty to appoint a grievance redressal officer.
Equality Law
Both the opinions in the minority: the Chief Justice of India (CJI) Chandrachud’s and Justice SK Kaul’s highlight the need for an anti-discrimination law that would prevent discrimination on the basis of sexual orientation.
Such a law would impose duties on private establishments, and if well drafted, provide remedies that do not require expensive and inaccessible High Court litigation.
This would make equality for queer persons, as well as others covered under such a law on other grounds, something they can assert in their schools, offices and markets rather than in Courts alone.
However, the majority opinion by Justice SR Bhat seems to temper the recommendations of the minority.
Similar to his comments on marriage, Justice Bhat recognises the ‘need’ for an anti-discrimination law, but says that the Court cannot comment on its substance or find a duty to enact one. The unanimous recognition of a ‘need’, however, might still lend activists campaigning for such a law with some judicial support.
Conversion Therapy
Both the majority and minority affirm the illegality of conversion practices that seek to ‘correct’ one’s sexual orientation or gender identity. This is not something novel, as the Madras High Court has already held this in S Sushma.
As a result of this, the National Medical Commission declared conversion therapy constitutes misconduct. However, there is no definition of what constitutes a conversion practice. Further, it does not account for the vast alternative medicine system in India including Ayurveda, Unani, Siddha, Homeopathy, or religious practices.
The CJI’s opinion seems to go further in his directions, by prohibiting ‘”treatment” by doctors or other persons’. However, Justice Bhat’s majority opinion only asks respondents to ‘ensure’ that they are not subjected to involuntary medical or surgical treatment. This means that the Court’s order does not provide any further support for the fight against inhuman conversion practices, though it does at least affirm what was achieved by S Sushma.
Protection From Violence
The directions issued by the CJI for protection against violence included guidelines that were provided in S Sushma as well: on how the police should treat complaints against queer couples and grant protection for those under threats of violence.
This also extends to providing shelter homes, and setting up a hotline. Besides the hotline, these are directions that completely overlap with the directions in S Sushma, and affirming this would ensure that it applies to all States as a matter of binding law.
However, while the directions of the majority state that steps must be taken to protect couples from violence, they lack the specificity that the Chief Justice’s opinion had.
These directions do not come from thin air, but were directly requested by some petitioners in order to make real the right to live with a partner even outside of marriage, which even the majority agreed does exist.
It is unfortunate that even this minimal right that the majority assured queer people have, was not explicitly protected with specific and implementable directions.
Even the shelter homes currently operated by the State, limited to transgender persons, have not received payments. A Supreme Court verdict could have put pressure on the State to expand, fund and implement these schemes.
Horizontal Reservations for Transgender Persons
While the legal issues involved with horizontal reservations are quite distinct from those in the current case, the silence on this issue is telling. A core part of the disagreement between the majority and minority is precisely about the extent and nature of what positive obligations the Court can impose on the State, and NALSA exemplifies this approach.
While the decision was cited, the part of the judgment directing reservations was not discussed at all.
The judgments could have benefitted from mentioning that the positive obligations that the State already has and all judges unanimously agree should have has not been fulfiled, a point raised multiple times during the hearings.
This would have shown the State that the Court is aware of its compliance record on queer rights.
Despite the judicial empathy from all judges, recognition of discrimination and promises of existing rights, the majority judgment seems to take away most of the collateral or secondary gains that could have been provided for in this case, separate from the institution of marriage itself.
(Mihir Rajamane is a student of law at the University of Oxford with deep interest in public law, gender and sexuality, and education. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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