same sex marriage and legal rights

Same-sex couples: A judge to the rescue

On the heels of the dismal Supreme Court decision, Judge Anand Venkatesh offers hope for LGBTQIA+ couples

legal status to relationships between same-sex couples and other LGBTQIA+ couples

1 Justice Anand Venkatesh of the Madras High Court has innovated yet again. On November 17, 2023, in Sushma vs Commissioner of Police, 

2 he tasked the State government with working out a “Deed of Familial Association” which would provide legal status to relationships between same-sex couples and other LGBTQIA+ couples

उन्होंने राज्य सरकार को "पारिवारिक संघ का विलेख" तैयार करने का काम सौंपा, जो समान-लिंग वाले जोड़ों और अन्य LGBTQIA+ जोड़ों के बीच संबंधों को कानूनी दर्जा प्रदान करेगा।. 

3 This order is truly trendsetting in the light of the recent Supreme Court decision in Supriyo vs Union of India wherein the Supreme Court refused to recognise the 

🍁right to marry, 

🍁or even the right to civil unions, of same-sex couples.

While the SC Bench in Supriyo

was unanimous, sadly, in holding that there was no fundamental right to marry, there was a difference in the majority and minority opinions when it came to the question of civil unions. 

But they abandoningb it  in the field of gov and leaving same-sex couples to the mercy of the government and the legislature, whose policy on this matter is clear.

But Justice Venkatesh shines not just a candle but a strong beacon lamp

1 What he has done is nothing short of genius. In law school, we were taught the doctrines of Maine and Graveson that the law moved from status to contract, thence to statute. 

2 Since the SC has declared that statute, i.e. the Constitution and marriage laws, cannot be invoked, this Judge has adroitly मुस्तैदी से  shifted from the forward line to the midfield and taken possession of the ball of contract. 

3 he has fashioned the concept of a Deed (basically agreement) of Familial Association

 Into this Deed, he conceptualises the inclusion of rights and protections for them

🍁 against harassment and violence, 🍁and discrimination in matters of employment, housing and

🍁 assimilation मिलाना  in society. 

4 The State government is directed to put this into effect. 

Civil unions have been recognised in a few countries across all continents

1 Primarily created to provide recognition to same-sex couples, they refer to a legal arrangement

 wherein the benefits and entitlements arising from the relationship are extended to couples. 

2 This provides legal and social validity to queer couples who can now proclaim and celebrate their relationship in the face of an intolerant society 

3 and thus protect them from interference either from the State or others in society.

4  It also stands as documentary “proof” of their relationship which would help couples in obtaining various benefits and entitlements that would previously be impossible.

यह सब प्रोवाइड करने का क्या अर्थ है

It ould mean that “the State will be able to give its stamp of approval to persons, who are in a relationship in the community 

and to a great extent, this will enhance the status of such persons in the Society”.

 They will “… have protection to live in society without being disturbed or harassed”. Bravo!

So, what should the Tamil Nadu Government do now? 

At a minimum, establish the framework to recognise such relationships through registrations of such Deeds. However, much more is possible. 

The State government could enact legislation creating the institution of Civil Unions and accord such status to same-sex couples; the Supreme Court’s rationale is that this is the business of the legislature.

What says Constitution and dispute with governer 

1   Even more laws relating to marriage, 

🍁divorce, 

🍁inheritance, 

🍁succession, 

🍁minors, 

🍁adoption etc., are all present in the Concurrent List under the Seventh Schedule to the Constitution, thereby giving powers to the State to legislate on the same.

2  Peculiar to Tamil Nadu is another constitutional hazard in the person of its Governor, R.N. Ravi, 

who imagines that his office calls the shots in a democratic Republic; hopefully, so he will be straightened out by the Supreme Court soon.

3 स्टेट का जजमेंट किस समय आ रहा है

What is remarkable about this order is that it is issued in the wake of a disastrous Supreme Court judgement which cribbed, crabbed, confined and worse, decimated hopes of equality and equal treatment before law that members of the LGBTQIA community may have harboured. 

4 With one stroke, this High Court Judge has created hope. 

He has worked change into the interstices of law (remember Oliver Wendell Holmes Jr. famously said “legal progress is often secreted in the interstices of legal procedure”) and expertly worked his way to arrive at a principled legal conclusion as well as a perfectly enforceable order.

 He deserves congratulations. This also brings hope. In this country’s troubled judicial history, it is frequently the High Courts that have come to the rescue.

 Remember, they did so brilliantly during the Emergency but were spectacularly upended by some famous names in the Supreme Court. It is heartwarming to see that our High Court judges continue to meet the challenge.

Source the hindu