On October 17, 2023, the Supreme Court of India handed down its decision in Supriyo v. Union of India. The case concerns the LGBTQIA+ community’s right to same-sex marriage. The case posed a delicate and complex question about individual and collective rights. Yet this question goes largely unanswered, if not completely ignored, in debates about equality and the constitution. The ethical role we envisioned for the court is this: to give a say to the unheard voices that cannot make an impression in parliamentary chambers because of a lack of representation, or because representatives are apathetic.

The bench of five judges penned four separate opinions, introducing confusion. Nevertheless, it multi-vocal result undoubtedly fits the temperament of the Indian Constitution. Chief Justice of India Dhananjaya Chandrachud, deserves praise for instituting a bench that allowed such colorful and varied arguments during a hearing.

Justice Chandrachud’s argument

The Supreme Court made a sincere attempt to recognize as many rights as were feasible within the parameters of their jurisdiction. Chandrachud deserves special recognition for his dissenting opinion. In it, the chief justice tried his best to elevate a civil union between two people to parity with the status of marriage. Chandrachud emphasized the functional and operational aspects of Articles 19(1)(c), (e), (a), 21 & 15(1) of Indian constitution. He acknowledged that marriage cannot be declared a fundamental right; rather, it is an issue for the parliament to decide. The court is also unable to recognize the marriage rights of members of the LGBTQIA+ community within the current legal framework.

The court considered whether such a right may have been created by the Special Marriage Act, 1954. Building his arguments on the cases of Navtej Singh Johar v. Union of India, Shakti Vahini v Union of India, National Legal Services Authority v. Union of India and Justice K.S. Puttaswamy & Anr. vs. Union of India & Ors., Chandrachud underlined that the act’s wording is not clear enough to establish this reading.

In his detailed ruling, Chandrachud provided broad guidelines for defending the civil union between members of the LGBTQIA+ community. These guidelines include educating the public about the group’s rights to prescribing the standards, such as opening a joint bank account, ration card, etc. In a nutshell, Chandrachud went all out to grant the civil unions of members of the LGBTQIA+ community status equivalent to marriage, including adoption rights.

The majority vs. Chandrachud

To concisely summarize Chandrachud’s methodology, we should apply an approach based on Alan Dershowitz’s book, Rights From Wrongs: A Secular Theory of the Origins of Rights. Every asserted right is thought to have roots in an earlier injustice. Germany is one example: The current German constitution is centered on human rights and upholds them as fundamental. Germany learned from its horrific Holocaust and built a more stable society that upholds human dignity.

Throughout his ruling, Chandrachud underlined the marginalization that the LGBTQIA+ community experiences due to insensitivity. As restitution for previous wrongs, they were granted equal status as a civil union, complete with all the benefits.

However, the majority judgment, led by Justice Ravindra Bhat, did not support Chandrachud’s stance. Justice Hima Kohli and Justice PS Narasimha concurred. The basic structure of constitution includes the separation of power; so, they argue, it would be erroneous for the court to establish an institution legally or morally comparable to marriage on its own authority.

Bhat underlined unequivocally that, as much as the court can set a legal precedent, a right does not always translate to a positive legal obligation. In other words, the state is not required to establish the socio-legal framework to support the right to civil unions simply because they exist. The political branches will have to choose the best moment to repair this, as the judicial branch is incapable of doing so.

Examining the verdict

I examine this verdict from legal, moral and sociological angles. From a legal perspective, the judgment is entirely valid, as it closely adheres to the fundamental tenets of the Indian constitution.

From a moral perspective, we must first ask, “Why does a court exist?” This addresses its ethical obligation. As I previously stated, a court is crucial in providing a voice for those who go unheard in a democratic nation. The ethical requirement for an impartial arbitrator to dispute an individual’s rights against the state is what gave rise to the entire concept of judicial review.

The judgment somewhat succeeded in this area: It elevated the conversation about LGBTQIA+ people and their rights to a public forum where it will be discussed across the nation. Even if the verdict did not provide the intended outcome, a conversation about the voiceless can start creating a path to that goal. A dissenting position may soon become jurisprudential.

From a sociological perspective, the question is whether the verdict is widely accepted by the LGBTQIA+ community and the affected legal diaspora. Although there have been conflicting comments about the ruling, most LGBTQIA+ community members are discouraged. Several leading legal blogs have criticized the judiciary for failing to protect LGBTQIA+ groups’ marriage rights.

This criticism is unfair. The supreme court has performed remarkably, to the extent that was legally feasible.

[Lee Thompson-Kolar edited this piece.]

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.