In the same-sex marriage case, the Supreme Court, speaking through a majority, agreed that gay couples have a “right to relationship.” Elaborating, it held that the right includes “the right to choose a partner, cohabit and enjoy physical intimacy with them, to live the way they wish to, and other rights which flow from the right to privacy, autonomy and dignity.” It declared that the State has to extend protection to gay couples under threat of violence. The court also stated that gay couples can “celebrate” their “commitment to each other, or relationship, in whichever way they wish, within the social realm.”
The straightforward implication of the court’s decision is that if families of gay persons are so inclined, they can celebrate their children’s ‘vows’ of commitment towards each other by throwing parties with ‘band and baaja’. If any group opposes such a celebration, it would have to be controlled by the law-enforcement authorities. The irony is that while the court has said that gay couples can “celebrate” their relationship, legally speaking, they continue to remain strangers to each other.
The court also went into great detail on the legal discrimination suffered by gay couples. It noted, inter alia, “For instance a queer couple may live together as spouses (without legal recognition) — even for two decades. If one of them passes away in a motor vehicle accident, the surviving partner would not only be unable to get any share of the deceased partner’s estate but also any portion of the compensation.” This is only one of the deprivations it mentioned. The court emphasised that these deprivations and discriminations need to be addressed.
The essential question before the court was how would these discriminations be addressed. The petitioners — members of the gay community — asked that they be covered under the Special Marriage Act, 1954 and other marriage laws. The court restricted its examination to the SMA only. Even here, the court refused to accept the petitioners’ plea. It concluded that the Act could not be extended to same-sex couples. With the Act ruled out, the court opined that it was not the appropriate branch of the State to go into the issue of giving positive legal rights to gay couples such as those that accrue to married heterosexual couples. It noted the Union government’s commitment to form a committee headed by the cabinet secretary to go into issues relating to gay couples.
In this context, the court’s direction is significant. It states that “the Union shall set up a high-powered committee chaired by the Union Cabinet Secretary, to undertake a comprehensive examination of all relevant factors, especially including those outlined above.” The committee would have to consist of all stakeholders and take into account the views of state governments and Union territories. The “relevant factors” are an obvious reference to the legal difficulties faced by gay couples.
The cabinet secretary has an unprecedented opportunity to contribute meaningfully to social transformation. It can only be hoped that he will give the necessary priority to the duty cast on him by the court’s direction. Through the committee, he can recommend a legal recognition of same-sex relationships. Indeed, unless that is done, none of the disabilities mentioned by the court can be remedied. As a former civil servant, I clearly feel that the first step to recognising the positive rights of gay couples is to give legal recognition to their relationship. I cannot visualise how even
mundane administrative measures such as the opening of joint bank accounts and giving consent to medical treatment can be accomplished without the State ‘legally’ recognising a same-sex relationship.
Recognition of same-sex couples, however, does not mean ‘approval’. Approval connotes a positive judgment. That can be avoided by putting in place creative systems to restrict recognition to only that. Positive rights can flow from such recognition. Naturally, there are numerous other issues that the committee will have to consider, including the right of a gay couple to adopt children.
Indian society is evolving rapidly. While it is absorbing progressive features, regressive aspects are also influencing the Indian mind. Personal and social change are always painful processes. These are so as much for individuals as for groups. And in no sphere is the process of change as agonising and difficult as in matters of marriage and relations between couples. It is especially troubling for persons and society at large to accept same-sex relationships. But one needs to understand that sexual orientations are many and flow from the intrinsic nature of individuals. Also, as the court has held, different sexual orientations are not only an urban phenomenon but are found in all sections of the population.
I have described the journey of my wife and I in accepting the sexual orientation of our accomplished daughter in an article in a national daily in April this year. Hence, I am aware of the great social leap that society has to take in accepting same-sex couples to be endowed with positive rights and privileges that are enjoyed by heterosexual couples. That step must be taken: without it, the Supreme Court’s observation that all Indians are equal irrespective of their sexual orientations will remain meaningless. Besides, it is inhumane that gay persons are told that they are free to ‘celebrate’ their relationship even as they live as legal strangers to each other.
I am aware of the limitations of a civil servant, having spent my professional life as one. But I am equally aware of the great good that the senior civil service can do for the progress of India. All eyes will be on the cabinet secretary and the manner in which he proceeds with the committee. Even though the petitioners have filed a review petition, ultimately the ball will be in his court. He has a historic opportunity and heading this committee will perhaps be the most important task he will undertake in his distinguished career. He carries the hopes of innumerable persons, including gay civil servants, who are subjected to discrimination or suffer silently.
Vivek Katju is a retired Indian Foreign Service officer