Source: The Hindu

Introduction

The Supreme Court did not recognize Same Sex Marriage in the case of the Supriyo v. Union of India (2023) stating that this resulted into judicial legislation. However, the court ignored several precedents where it made the law, and the Doctrine of Indirect Discrimination also came into limelight after the verdict of this case as it was contended that court applied this doctrine. The SC has ignored the journey of legalization of the Same-Sex Marriage in the United States of America.

What is the Doctrine of Indirect Discrimination?

• The concept of indirect discrimination, signifying that the party engaging in discrimination cannot evade constitutional obligations by emphasizing intent or purpose, has become firmly established in the legal principles of Indian jurisprudence.
• The doctrine addresses situations where a seemingly neutral rule or policy disproportionately affects a particular group of people, resulting in discriminatory effects.
• Unlike direct discrimination, which involves explicit differential treatment based on certain characteristics, indirect discrimination occurs when a seemingly neutral criterion, practice, or policy puts individuals with a particular characteristic at a disadvantage.
• The disproportionate impact should put the affected group at a disadvantage compared to other groups.

What is the Journey of Same Sex Marriage in USA?

• The journey of legalisation of Same Sex Marriage in USA was ignored by the SC as it performed the role of mediating court rather than adjudicating court.
• United States Supreme Court in the case of Baker v. Nelson (1971) denied recognizing the Same Sex Marriage by stating that “This historic institution manifestly is more deeply founded than the asserted contemporary concept of marriage and societal interests for which petitioners contend. The due process clause of the Fourteenth Amendment is not a charter for restructuring it by judicial legislation”.
• The SC of US recognized the Same Sex Marriage after 40 years in the case of Obergefell v. Hodges (2015).
  • In this case, the SC held that, “It is of no moment whether advocates of same-sex marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of same-sex couples to marry”.

What are the Different Cases Where Court Made the Law?

• Lt. Col. Nitisha and Ors v. Union of India (2021):
  • The SC in this case held the denial to grant permanent commission to women in army, unconstitutional.
  • The SC directed army to provide permanent commissions to female officers with over 14 years of service and to offer them the choice to retire with a pension if they decided not to continue their service under the revised policy.
• Vishakha v. State of Rajasthan (1997):
  • The SC acknowledged the lack of law for protection of women from sexual harassment at workplace and gave guidelines and norms to be strictly observed in all workplaces for the preservation and enforcement of the right to gender equality of the working women.
  • The SC in the case said that these directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field.
• National Legal Services Authority v. Union of India (2014):
  • The SC recognized the equal right of third gender and granted them recognition in the eyes of law.

Conclusion

The denial of marriage equality by the SC not only contradicts the spirit of individual freedoms but also hinders the progress towards a more tolerant and equal society. Ultimately, this decision underscores the ongoing struggle for LGBTQ+ rights and highlights the requirement for continued advocacy and legal reform in the way of marriage equality.