In ruling on same-sex marriage, the court has acknowledged the facts of human life

- A married couple is given certain rights and privileges under the law

- Opinion-P.Chidambaram

- These three honorable judges did not agree with the right of same-sex couples to adopt children, as it could have disastrous consequences due to the narrowness of the law.

Women and men have been living together for a long time before the idea of ​​forming a state or government was implemented. Thus in a way cohabitation has existed before the existence of any law. The law recognizes this cohabitation and gives it different names. Among which the most popular name is Lagna. A married couple is given certain rights and privileges under the law.

From our current knowledge of human life and behavior and from the estimates presented in surveys dating back to the time of Alfred Kinsey, relationships between men and women and between women have always existed. Gay and lesbian are not unfamiliar words. We have accepted that gay, lesbian, bisexual and other (LGBTQI) people exist. After all they are human too and like other humans they love and receive love. They have sexual relations.

What is the government's response when gay, lesbian, bisexual and others (LGBTQIA) demand the same rights and privileges as those in a marriage union? Is there any law that recognizes relationships between gay, lesbian, bisexual third parties - LGBTQIA - and such others? Parliament has not enacted. In contrast, Section 377 of the Indian Penal Code still survives and punishes those who commit acts against nature. In Navtej Singh v Government of India in 2018, a five-judge bench decriminalized consensual same-sex relationships, overturning a two-judge bench order in 2013.

Many questions and answers

Five years later, a major question was brought before the Supreme Court by the community of Gay, Lesbian, Bisexual Triads - LGBTQIA - and others, particularly regarding the legality and civil rights of their marriages. This was answered on 17th October, 2023. A bench of five Hon'ble Judges accepted some of the points and disagreed with others. Finally, the judgment was delivered by Justice Ravindra Bhatt in which Justices Hima Kohli and P. S. Narasimha agreed and it is the law of India today.

It is understandable that political parties are hesitant to say anything on this verdict. A political party has lakhs of workers and it is not easy for a political party to come to a consensus on an issue which is very sensitive and affects personal life and has far-reaching consequences. Individuals may also feel hesitant to express their views on the issues presented in this case. The best I can do is to raise these issues and hope for a practical discussion.

Court: Marriage is a constitutional right granted only to heterosexuals. Once the court came to this conclusion, other conclusions followed suit. There must be two sexes in one marriage. Therefore, transgenders in heterosexual relationships have marriage rights, but homosexuals do not. Now the ball is in the government's court. I do not believe that a law allowing same-sex marriage will pass parliament in the near future. - This does not seem possible even in the Special Marriage Act.

However, the right to relationship is a fundamental right. The Honorable Judges would have been hard pressed to come to their conclusion on the marriage. He broke the shackles and declared that a person then has the right to choose his partner irrespective of his gender.

The judges have come to this conclusion on the principles of freedom, freedom of choice, privacy and self-respect. Justice Ravindra Bhatt, explaining the right of relationship, noted that:

Right to choose a partner, partner and enjoy physical intimacy.... They are like every citizen and have right to live freely and express this choice, government should protect them.

But it is not the right to civil union – Justices Chandrachud and Kaul were prepared to treat the right to a relationship between same-sex couples as a right to civil union, but Justices Bhatt, Kohli and Narasimha were not willing to go that far. So for now, same-sex couples have relationship rights no more. But there is no guarantee that a country like India will not be disturbed by those fighting in the name of righteousness. It is also uncertain whether the government will protect these people in a country where there is protest against certain types of clothing, food, worship etc.

Scholars believe that no details have been given in terms of relationship-

The three honorable judges did not agree with the right of same-sex couples to adopt children, as it could have disastrous consequences due to the narrowness of the law. Scholars believe that they could have taken a rational step on the issue of right of adoption and right of inheritance.

Disappointment in the LGBTQIA and other communities

It is natural for the LGBTQIA and other communities to feel frustrated and angry. Married couples expected that for all legal purposes the court would recognize their relationship as a member of society (although not a marriage).

But no alarm bells ring in the larger society. I believe, at any given time grand society is several steps ahead of court or legislature. This judgment has become a topic of discussion among common people as well.

The court has stamped the facts of life and written a chapter. Like sex, condoms and homosexual relations are not unknown words. Same-sex couples will be increasingly accepted by society. We may turn the page of judgment and wait for a day when a court or parliament will write a new chapter.