By Narasimhan Vijayaraghavan
Supriyo v. Union of India. That is the flavour of the season. No one wants it to be of the lavender genre. It is in our drawing rooms. Live and on your face. Print and electronic media is overwhelming with information overdose. Social media is devastatingly polarized and divisive. The faculties of subjudice and even contempt have gone for a toss. While India has its ‘reasonable restrictions’ to free speech, in the Constitution of India, it is almost as if US First Amendment has taken its place.
The five law lords of the Supreme Court of India, comprising the Constitution Bench as per Art.145 of the Constitution are now household names. Standing outside a newspaper vendor’s shop ( old habits diehard) and tucking into a freeload of vernacular eveningers, with a cuppa of tea in hand, seated on the reversed wooden crate of cold beverage bottles, as if presiding, one heard an elderly lady wondering why ‘the man in the middle who looked so nice and decent, so keen to declare right to marry to ‘them’. Did he not have family and friends to know what would happen to ‘them’ and ‘us’ around, if it suddenly happens?”.
No one replied. It was hushed silence. It was a nuanced submission from the wizened old madame. This very submission appears to have turned the face of the proceedings. It was ‘cruising’, as the shop owner said. A fait accompli, if ever, could be gleaned from the public comments of the gentlemen on the pulpit.
There were thoughtless, unfair imputations of a conspiracy from the ‘middle man’, as another person loosely referred to him, to constitute a bench with his classmates from law university. It was that sad and bad, as the long suffering LGBTQA plus plus community made its case.
What happened? Fait accompli now a Faux Paus? Or pivoting towards it. Milords on the Supreme Court, on 27th April,2023 asked the Union government to give a response on social benefits that can be given to same-sex couples even without legal recognition of their marital status. Chief Justice of India DY Chandrachud, the ‘man in the middle’ suggested that there are ministries dedicated to this purpose like social justice and empowerment such as Ministry for Women and Child Development.The court asked Solicitor General Tushar Mehta to see if there can be separate legislation/s explored, which would protect the rights of same-sex couples.
These questions were least expected. Right to cohabit, right to choose a partner were fundamental rights, they asserted. Was it not a seamless movement to ‘right to marry’? How could ‘they’ be denied the inalienable right, ‘they’ ( a different ‘they’) asked? That is where the old mami came in. And an old mama joined in and said, “ There is a woman on the court too. Won’t she counsel them? How can she join them when she must know how many changes would need to take place for ‘it’ to happen inside the home and outside? It is not a ‘certificate’ to hand out. It has so much in ‘it’ that not ‘them’ alone will be impacted, each one of us too. I tell you the ‘issue’ is not new. Talk on it is new. They say we must ‘evolve’. I agree. Even I have. I now listen to my grandchildren. But this! I don’t think just five persons , however wise they are, can decide on it. We the people must have a say. Our law makers may be unwise. But they listen to votes as vox populi. To be in power. Leave it to ‘them’ ( a different ‘them’ again’) is all, I told my grandchildren”.
Wow! What legal subtleties in the submissions. It cannot get any better. It now appears that the message is getting ‘there’. Otherwise, the questions posed to the central government would never have come. Good for Judiciary. Good for Executive. . Good for Legislature. Good for Democracy. Good for Republic. . Very Good for India that is Bharat.
We are not behind. It took from 1789 to 2015 in US, for Obergefel to happen. It took 1215 to 2013 in United Kingdom for ‘it’ to happen, by way of grant of ‘civil union’ relationship by a statute.
We are just 76 years independent and 70 years a republic. We need not wait for centuries. ‘It’ can and must happen earlier. But in wholesome manner, taking due care of all the inevitable, inexorable collateral impacts (to be not damages), family laws, adoption, custody, inheritance, maintenance, divorce, the whole works.
Wait we must for Parliament to listen to us, lest fait accompli become a deleterious faux pas.
‘It’ matters to us all. We the People. Not just to the anxious and anguished ‘them’ alone. You agree?
(Author of Constitution- its making and working, OakBridge and practicing advocate in the Madras High Court).