Silver lining

 

This should be a silver lining for activists fighting for marriage equality. Today might be a dark day for them. But the lessons from a combined reading of both these judgments are clear

The Supreme Court has just ruled that two persons of the same sex cannot marry each other in India. For a court that takes pains to appear progressive and liberal, this has come as a shock to many. But the Supreme Court has always been a conservative institution. From striking down land reform legislation at the behest of the landed gentry to upholding the rights of maharajas to their privy purses, the court has always trailed society in matters of moment. But if there is something that characterises the court more distinctly than its conservatism, it is its ability to correct itself. In that lies a glimmer of hope for the LGBTQ community.

What if this outcome is short-lived? What if another bench of the Supreme Court doubts its correctness and decides, a few years down the line, that two persons of the same sex can, in fact, marry each other? This possibility has been made more likely by an otherwise innocuous decision of the Supreme Court last week to list a matter pertaining to an issue of arbitration law.

A question of interest only to legal practitioners and companies engaging in regular arbitrations arose before the court in the case of N.N. Global Mercantile (P) Ltd. vs Indo Unique Flame Ltd and Ors — whether an arbitration agreement needed to be stamped to be valid. A three-judge bench headed by Justice D.Y. Chandrachud held that it didn’t require stamping, but a five-judge bench headed by Justice K.M. Joseph overturned it. This is beside the point of this column but relevant to understand what happens next.

So egregious was this outcome to the practitioners of arbitration law that the Chief Justice of India, when requested by a party to constitute a seven-judge bench to take a relook, promptly set up such a bench. That party, to cut a long story short, was not directly concerned with this case, but had a tangential interest in the matter. The same was the case of a new party which also had no interest in NN Global’s case but would be affected by its result. As a consequence, a seven-judge bench was constituted last week to hear this legally significant, but relatively arcane, question, at least when it comes to Constitution benches of the Supreme Court. This is a hugely consequential development with repercussions on the marriage equality judgment for three key reasons.

First, if one looks at the docket of the Supreme Court, one will find that five significant cases are awaiting the establishment of a seven-judge bench of the court. These pertain to whether Aligarh Muslim University is a minority educational institution or not, whether scheduled castes can be further sub-classified for the purpose of reservations, whether a state government is competent to impose a surcharge on sales tax, whether the certification of a bill as a money bill can be judicially reviewed, and the interplay between the freedom of the press to report legislative proceedings and the freedom of legislators to free speech. Without any disrespect to arbitration lawyers, each of these questions has at least as much at stake, if not more, than the interplay between stamp law and arbitration law. But each of these questions has had to wait anywhere between three years (scheduled caste classification) to 24 years (surcharge on sales tax). In contrast, NN Global had to wait a little over two weeks. Maybe the last word on marriage equality has yet to be spoken and another chief justice will rule differently.

Second, a key reason why a court of law is different from a court of public opinion is because there is a proper procedure for doing things. If the judgment in NN Global was egregiously wrong, then the Constitution allowed the adversely affected parties to ask for a review of the judgment. That petition would go before the same bench that delivered the judgment to persuade its members to see the folly of their ways. No review, to the best of my knowledge, was filed in this case. Instead, a plea was made before the CJI in a fresh case to refer the matter to a seven-judge bench. As master of the roster, the CJI is legally entitled to do so.

But the effect of this otherwise legal action is to bypass the constitutionally mandated and tried and tested process of review. This has the makings of an intra-court appeal — from one bench of the Supreme Court to another — something that has no basis in law or conventional practice. One will not be surprised to see chancy pleas of this kind being made before future chief justices. This is a consequence of allowing any single individual as CJI to serve as an absolute master of the roster with no requirement to justify his actions. The actions may be moved by the noblest of intentions. But its impact will be felt when a differently-minded chief justice sets up a differently-minded bench to deliver a different judgment.

Finally, this judgment strikes a blow to the cause of finality in the Supreme Court. The Indian judicial system is notorious for giving an individual litigant excessive bites at the cherry in the interest of fairness and at the cost of systemic efficiency. From a trial court to the Supreme Court through the district court and the high court, a rich litigant who can afford lawyers at all levels is certainly indulged by India’s judiciary. This judgment provides yet another ladder to climb before a decision attains finality.

This will not only exacerbate delays in the Supreme Court, it will also affect the institutional image of the court as an authoritative dispenser of justice. Judges of the court have often repeated the cliché that the Supreme Court is not infallible, but it is final. Decisions like the one to revisit NN Global will make the court neither infallible nor final.

This should be a silver lining for activists fighting for marriage equality. Today might be a dark day for them. But the lessons from a combined reading of both these judgments are clear. Getting relief in the Supreme Court is a matter of chance. While one should never stop hoping, equally one can never count on just having a good case. There is always more at play, and that is not always the letter of the law.

Arghya Sengupta

Source: The Telegraph, 18/10/23

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Marriage equality is a constitutional right, do not deny it to same-sex couples

 

India has finally joined the democracies that have decriminalised same-sex relationships. It is now time to join the many democracies which recognise the right of a citizen to marry anyone she chooses.

Recently, three couples (two male, one female) have filed petitions, two in the Delhi High Court, and one in the Kerala High Court, arguing that the state’s refusal to recognise their marriages violates their constitutional rights. The first couple that I know of who tried to register their marriage were Vinoda Adkewar and Rekha Chaudhary in Maharashtra in 1993. Still earlier, in 1987, Leela Namdeo and Urmila Srivastava, married by religious rites in Bhopal. Even earlier, in 1980, Lalithambika and Mallika in Kerala, tried to drown themselves, with their hands tied together.

In my book, Love’s Rite: Same-Sex Marriages in Modern India (2005), I examined hundreds of cases of such young women (and a few men), almost all from non-English speaking, lower-income backgrounds, who got married by religious rituals or committed joint suicide or both. They are from all over India and include Hindus, Muslims, Christians, Dalits, tribals, fisherwomen, agricultural workers, students, construction workers. Most of them had never heard words like “lesbian” or “gay”. Such weddings and suicides continue today. Those who commit suicide often write notes, asking to be buried or cremated together and saying that they will be married in the next life.

The solicitor-general of India was recently quoted as saying that same-sex marriage is against “Indian values.” TIn many cases, families violently separated the couples, often driving them to suicide. But several families, after initial disapproval, accepted the partnerships and celebrated the weddings. In 2001, two nurses, Jaya and Tanuja, got married in Bihar. At the same Hindu ceremony, Jaya’s sister married a man, and Jaya’s family participated, along with 200 guests. But the registrar of marriages refused to register the marriage. In 2006, Bodo tribals of Simlaguri, Assam, asked MLA candidates to provide legal rights to Thingring and Roinathi, a daily-wage labourer and a domestic help, who got married in a temple in 1999. Are these families and communities not Indians?

Male-female couples whose families disapprove of their relationships also marry by religious rites and some commit suicide. It is precisely because Indians disagree about values that the Special Marriage Act exists. It allows couples whose marriage may be disapproved of for any reason (inter-religion, inter-caste, different income groups) to obtain the legal rights of marriage.

I have interviewed Hindu priests and swamis, who performed same-sex weddings (one as early as 1993). They told me that the spirit (atma) has no gender and marriage is a union of spirits; and that when people get inexplicably attached despite social disapproval, this is due to a bond from a former birth. The 11th-century Sanskrit text, the Kathasaritsagara, provides the same explanation for cross-class and cross-caste couples who want to marry.

In most countries, the demand for marriage equality has come not from LGBT movement leaders but ordinary people. In the US, the first couple who got their marriage registered were Jack Baker and Michael McConnell in 1971. They have now been together for 50 years. When lawsuits were filed in the US to obtain marriage rights, many LGBT movement activists disapproved. The demand came from ordinary couples.

Most male-female married couples take for granted that the day after they marry, they can open a joint account, make health and funeral-related decisions for each other, and inherit each other’s property. Two women or two men who are married by religious rites or in a foreign country cannot do these things. When an Indian man marries a foreign woman, she immediately gets the right to apply for a PIO card, which allows her to permanently live and work in India. But when he legally marries a foreign man in another country, say, Taiwan, his husband remains a legal stranger to him and can only get a tourist visa to stay a maximum of six months.

India has finally joined the democracies that have decriminalised same-sex relationships. It is now time to join the many democracies which recognise the right of a citizen to marry anyone she chooses. Until this happens, we have a strange situation where a couple is legally married in, say, England, but when they come to India, they are single. What should they state about themselves in a visa form — single or married? If they write “single” they are being forced to lie.

This article first appeared in the print edition on November 4, 2020 under the title ‘Let law not do them part’. Vanita is a novelist and scholar.

Indian Express: 4/11/20