The Supreme Court’s recent ruling on same-sex marriage is one step forward, one step back. The Court refused to amend the Special Marriage Act, 1954, to recognise same-sex marriage as legal. The Bench also refused to look into adoption by same-sex couples. However, the majority ruled that members of the LGBTQ+ community have the right to relationship. This is merely consolation, reiterating the Court’s landmark judgment from 2018, which struck down Section 377 of the Indian Penal Code under which gay sex was categorised as an “unnatural offence”.
The top court’s reasoning is pretty simple — the legal recognition of same-sex unions as marriages should be done by the legislature and that any attempt by the court to do so would amount to encroaching in the legislature’s role. The line between judicial activism and overreach is a fine one. The Supreme Court has done its job of stressing that one’s ability to choose their life partner is part of the right to life and liberty as defined in Article 21. The agents of change here must be our politicians. After all, the judiciary is responsible for upholding the law, it cannot legislate. That’s the role of the government and the legislature. So far, most politicians haven’t responded to their call of duty.
We constantly hear politicians decry that the marginalised are discriminated against (especially on the basis of caste), but they seldom talk of sexual minorities. Parties are non-committal about lending support to the LGBTQ + community to get equal rights as heterosexual couples. Even while discussing the Uniform Civil Code, attention is on women’s rights or its impact on various communities, but the rights of sexual minorities are often ignored. Politicians will only take up this matter if it gets them votes. This is where civil society and the community itself must step up, to increase awareness and humanise their cause. When the public puts enough pressure on the politicians, they will be forced to act.