Editorial 1: Two views on four key issues
Recent Context:
- Recently, A five-judge Constitution Bench of the Supreme Court headed by Chief Justice of India (CJI) D Y Chandrachud refused to grant legal status to same-sex marriages.
- While two judges the CJI and Justice Sanjay Kishan Kaul recognised that queer couples can form “civil unions”, they were in the minority.
- The majority of three judges said that the issue lay exclusively in the domain of the legislature.
Judgment of the Supreme court on four key questions.
1. The fundamental right to marry
Petitioners
- The petitioners had argued that there exists a fundamental right to marry a person of one’s own choice under the Constitution, and that the court must address the denial of that right.
- If the court recognised this as a fundamental right (like it did in the case of privacy in the 2017 Aadhaar ruling), then it would cast an obligation on the state to protect this right.
Minority View of SC:
- CJI Chandrachud did not agree with the petitioners’ argument that marriage is an inherent right that the state only regulates.
- The minority view stated that marriage may not have attained the social and legal significance it currently has, if the state had not regulated it through law.
- “Thus, while marriage is not fundamental in itself, it may have attained significance because of the benefits which are realised through regulation,”.
Majority View:
- Agreeing with the CJI on this issue, the majority view differentiated between what is “fundamentally important to an individual” from an enforceable fundamental right.
- “The fundamental importance of marriage remains that it is based on personal preference and confers social status. Importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support,” .
2. Interpretation of Special Marriage Act
Petitioner
- The petitioners had asked the SC to interpret the word marriage as between “spouses” instead of “man and woman”. Alternatively, the petitioners had asked for striking down provisions of the SMA that are gender-restrictive.
Minority View of SC:
- CJI Chandrachud said the court could not allow that, because it would “in effect be entering into the realm of the legislature”.
- If the court were to instead grant the second option to read down the SMA to the extent that it is gender restrictive, “it would take India back to the pre-Independence era where two persons of different religions and caste were unable to celebrate love in the form of marriage.”
Majority View:
- While arriving at the same conclusion, Justice Bhat stated that the court could not interpret the SMA to include same-sex couples since the objective of the legislation is not to include same-sex couples within the realm of marriage.
- “The provisions and the objects of the SMA clearly point to the circumstance that Parliament intended only one kind of couples, i.e., heterosexual couples belonging to different faiths, to be given the facility of a civil marriage
3. Queer couples’ right to adopt a child
Petitioner
- The petitioners had argued that the guidelines of the Central Adoption Resource Authority (CARA), which does not allow unmarried couples to jointly adopt children, is discriminatory against queer couples who cannot legally marry.
Minority view of SC:
- The CJI in his opinion struck down certain CARA regulations on the grounds that the legislation’s object is not to preclude unmarried couples from adopting a child.
- “In fact, all the other criteria ensure the child’s best interests. The Union of India has not proved that precluding unmarried couples from adopting a child (even though the same people are eligible to adopt in their individual capacity) is in the child’s best interests,” the CJI wrote.
- The minority view added that the exclusion of same-sex couples from adopting has the effect of “reinforcing the disadvantage already faced by the queer community. Law cannot make an assumption on good and bad parenting based on the sexuality of individuals”.
Majority View:
- The majority view largely agreed with the discriminatory aspects of preventing queer couples from adopting children.
- Justice Bhat termed this as having the “most visible” discriminatory impact on queer couples, and in principle agreed that a couple “tied together in marriage are not a ‘morally superior choice’, or per se make better parents”.
- Parliament has made the legislative choice of including only ‘married’ couples for joint adoption (i.e.,where two parents are legally responsible), arises from the reality of all other laws wherein protections and entitlements flow from the institution of marriage. To read down ‘marital’ status as proposed may have deleterious impacts that only the legislature and executive could remedy…,”
4. Civil unions for queer couples
Petitioner
- The halfway approach of recognising civil unions for queer couples was debated during the hearing.
- The petitioners argued that civil unions are not an equal alternative to the legal and social institution of marriage, and “relegating non-heterosexual relationships to civil unions would send the queer community a message that their relationships were inferior to those of heterosexual couples
Minority View of SC:
- The CJI located the right to form intimate associations within the fundamental right to freedom of speech and expression (Article 19).
- The CJI stated that for this right to have “real meaning”, the state must recognise “a bouquet of entitlements which flow from an abiding relationship of this kind”.
Majority view of SC:
- Justice Bhat disagreed with the view that the court can prescribe a “choice” of civil unions to queer couples.
- The majority opinion said that the state should facilitate this choice for those who wish to exercise it, is an outcome that the community may agree upon.
Conclusion:
- The court did not go far enough even as it has prised open some space and widened the room for manoeuvre for an embattled minority.
- Its categorical no to same sex marriage can also be said to make many of its empathetic observations on rights and discrimination seem like tokenism.
- In the end, therefore, the verdict points at the larger battles that still remain to be fought – the necessity of safeguards both within the home and outside, the recognition of civil unions as a possibility for the community, and the realisation, above all, that like all battles for equal rights, this, too, has a long and arduous road ahead.
Editorial 2: A ferry to Jaffna
Recent Context:
- Recently, Ferry service is started between India and Sri Lanka.
- From Nagapattinam in Tamil Nadu to cross the Palk Strait and travel to Kankesanthurai in Jaffna, Sri Lanka.
India-Sri Lanka Maritime connectivity and its importance
- The maritime service, begun in the early 1900s, was discontinued in the 1980s in the wake of ethnic strife in Sri Lanka.
- Reactivating the sea route had been on the agenda of governments of both countries for more than 12 years.
- India and Sri Lanka signed an MoU for sea connectivity in 2011 and a ferry service between Tuticorin and Colombo began that year. It was discontinued in less than six months, because of logistical reasons.
- The recent sea-route rejuvenation will give a much-needed fillip to commerce between India and Sri Lanka, and encourage people-to-people contact between the two neighbours.
It strengthens India’s Neighbourhood First policy
- The Indian government has located India-Sri Lanka ties within its Neighbourhood First policy.
- In July, during Sri Lankan President Ranil Wickremesinghe’s visit to India, the two governments came out with a vision document that emphasised maritime connectivity, including the development of ports at Colombo, Kankesanthurai and Trincomalee and the revival of sea routes.
- Besides improving business ties between the Indian Ocean neighbours, Cheriyapani is likely to bring pilgrims to religious centres in southern Sri Lanka and temple towns in south India.
Countering the China’s influence
- In recent decades, Beijing has loomed large over Delhi-Colombo ties.
- China is Sri Lanka’s biggest bilateral creditor and has roped in the island nation in its Belt and Road Initiative (BRI).
- Besides a $4-billion aid package, Delhi has sought to counter Beijing’s influence by underlining the civilisational aspects of its ties with Colombo, that involved the movement of people and ideas over centuries.
- It is significant, therefore, that the ferry service was launched a day before President Wickremesinghe left for China for a BRI meet
Conclusion:
- The Recent ferry services between both the nation is going to enhance commerce between India and Sri Lanka, and encourage people-to-people contact along with there is need to expedite resumption of other projects which are installed such as the Rameshwaram-Talaimannar ferry service for further improving the relation between both the nations.