Source: Best of both sides – On same-sex marriage, Supreme Court did not do justice; Opinion; The Indian Express; 28-10-2023
Syllabus: Gs-2; The Judiciary and Judicial Restraint. Gs-1; Indian society – Issues of LGBTQ+
Introduction: Supreme Court’s Influence
The Supreme Court of India has been touted as the most powerful court in the world. Its judgments significantly impact both the politics of the country and the lives of common citizens. Through mechanisms like public interest litigation, the Court has remedied injustices and mandated transparency in politics. It has intervened in various aspects of life, from mid-day meals to combating air pollution, often shaping these directions through interpretations of the Constitution.
A Puzzling Approach: Judicial Restraint
However, it is puzzling that when it comes to the fundamental rights of one of the weakest sections of society, the queer community, the Court decided to adopt a philosophy of judicial restraint. The marriage equality judgment is complex and addresses multiple issues, but the majority refused to recognize the right to a civil partnership and the right of queer couples to adopt. The Court, despite acknowledging discrimination faced by the LBTQIA community, expressed hope that the legislature would remedy these injustices.
Court’s Deference to Parliament
The deference to Parliament was also the argument of the government, which the majority endorsed. However, this position is legally and morally wrong. The Court is constitutionally required, not just empowered, to step in and provide relief when faced with deprivations and systemic injustices. The framers of the Constitution placed the task of defending fundamental rights upon the constitutional courts of the country. The Court’s power flows from the same charter that empowers legislatures to make laws, making its intervention legitimate.
Constitutional Obligation of the Court
The Constitution empowers the Court to invalidate unconstitutional laws and envisions a system of checks and balances to compel the government to act as required by the Constitution. Suggesting that the Court is powerless in the face of a legislative vacuum endorses constitutional immorality and gives free rein to future parliaments to defeat fundamental rights. Such an argument equates majoritarianism with democracy, which contradicts our constitutional values.
Ethical Concerns and the Need for Immediate Relief
The argument of limited judicial competence has ethical implications, equating majoritarianism with democracy. It fails to deliver substantive rights and relief that the queer community urgently needs. Relying on the goodwill of the majority to defend the rights of an oppressed minority is unrealistic. The Court should heed the call for justice, similar to how Justice Khanna’s dissent in the ADM Jabalpur case was later vindicated by time. It is hoped that the marriage equality case will also be reviewed soon by wise and empathetic judges.
Conclusion: Upholding Constitutional Values
The Court’s role is not merely one of restraint but also of protecting and enforcing fundamental rights, especially for marginalized communities. The Constitution empowers the Court to fulfil this role, and it should not shy away from this obligation. Ethical and legal imperatives demand that the Court act to ensure justice and equality for all citizens, including the queer community.