Marriage Equality Judgment A First Step ; Supreme Court Could Have Given A Timeframe For Centre's Committee : Senior Advocate S Muralidhar

In a panel discussion on the future of marriage equality in India organised by Caucus, a discussion forum of the Hindu College, Senior Advocate (Retd Justice) S Muralidhar stated that the recent judgement in Supriyo v Union of India was a first step in the larger process. He added that the Central Government could have been directed to come out with a Committee Report on the issue of marriage equality in a time bound manner.

He also stated that the marriage equality judgement was passed in a very tight timeframe and it required more deliberations. He added that owing to the time constraints, there were a lot of gaps in the oral submissions of the petitioners and the court also seemed to be under a strict time schedule due to Justice Ravindra Bhat's upcoming retirement. 

The senior advocate began his talk by emphasizing the dynamic nature of the judges' engagement throughout the proceedings. He noted that the questions posed by the judges evolved over the course of the hearings but, for seasoned court observers, the eventual verdict did not come as a surprise. What did differ was the approach and the depth of the judges' inquiries. 

He then spoke at a length about the strategy adopted by the petitioners in the matter. In order to elaborate on his point, he underlined how the journey of almost all socio-legal causes had been longer in comparison to the one pertaining to marriage equality. He gave the example of how decriminalisation of homosexuality took nearly a decade with the parties approaching the court multiple times. He explained how the Right to Education Act was enacted almost a decade after the judgement in Unni Krishnan, J.P. v/s State of Andhra Pradesh. Similarly, the Supreme Court formulated the Vishaka guidelines but the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 came much later. He said–

"There is a whole journey to be traversed when it comes for the court to see your point."

He delved into the historical context by contrasting opposition in the Naz Foundation v. Govt. of NCT of Delhi (in which Delhi HC decriminalised homosexuality for the first time in 2009) and stated that the Naz judgment had faced resistance from various religious groups but there was a relatively smooth passage of the Navtej Singh Johar v. Union of India (in which Supreme Court decriminalised homosexuality in 2018). He suggested that comprehending the current resistance required an examination of broader societal and political factors. He said–

"Even as we were listening to the arguments, that as a strategy, there had not been enough thought given. You will find the richness of written submissions, they were very elaborate. For all that to be reflected in oral arguments required some time. There are certain issues which require a lot of thought and reflection. It is expecting the court to suddenly come in your frame of mind and see your point when there is a whole background to all of us...There is a trajectory, an arc, context."

Elaborating further upon the issue of gaps left in the oral submissions of the petitioners, he added–

"The petitioners presumed that they had the best possible bench that they could hope for. How far is this bench representative of all the where it stands? That is one question you need to ask. The petitioners wanted the court to fill up a lot of blanks which were there in the oral submissions. I could see a lot of blanks which were filled up in the written submissions but a lot of blanks were not filled in the oral submissions this could also bring out the limitations of oral hearings in a very tight timeframe."

The senior counsel added that the tight time frame was also because of the fact that one of the judges had to retire so the verdict had to be given before he retired. He was speaking about Justice Ravindra Bhat who retired on October 20, 2023. "It was in a very tight timeframe for an issue like this. This was an issue which required a lot of thinking," he said

Despite the challenges and complexities, Muralidhar expressed optimism for the petitioners, viewing the recent judgment as just the first step in a larger process. He urged the petitioners not to lose hope, recognizing that the democratic process involves diverse voices and varied perspectives. He acknowledged the complexities faced by the judges in delivering a verdict that aligns with the evolving societal norms and legal principles. He said–

"You can see the anxiety in both the majority and minority judgement. They want to be seen as doing the right thing. They just don't know how to do it. They are faced with the complexity which is reflected in all these paragraphs. I would think that there was not enough time to reflect."

Sr Adv Muralidhar then stated that the court could have been asked to direct the Central Government to come out with a committee report in the matter in a time bound manner. He said–

"Just as a strategy, seeing how the proceedings in the court was going on, the central government saying let us have a committee to look into this issue– just as a strategy - make it time bound...Here the court can definitely drive the committee to come with something definitive to know where the government stands...That opportunity has gone by but just as a strategy it should have been done to keep the matter in the court for longer."

The senior counsel concluded by contemplating other alternative strategies, such as initiating proceedings at the High Court before reaching the Supreme Court, might have been more effective. He raised questions about the timing and the possibility of prolonging the matter in court, potentially influencing the outcome. He said–

"Would it not be better to take it to a High Court first like it was in Naz and then take it to the Supreme Court? Whether we should have kept lingering on the Supreme Court just for a while longer?"