By Hita M. Agarwal, WBNUJS, Kolkata.

If you are one of the 1.5 billion Facebook users over the world, you could not have possibly missed out on vibgyor marked profile pictures over the course of last week.

For the uninitiated, the facebook.com/celebratepride filter marked the Obergefell v. Hodges judgement, which legalised same-sex marriage in all fifty states of the United States of America. The judgement overturned the ruling in Baker v. Nelson, which was decided in 1972.

James Obergefell, and his partner, John Arthur were united in a civil union in the State of Maryland, but resided in Ohio, which did not recognise same-sex marriages. Obergefell filed a case against John Kasich, then Governor of Ohio, resulting in Obergefell v. Kasich, as he believed that the State was discriminating against legally out – of – State married homosexual couples. When terminally-ill Arthur passed away, Obergefell wanted the status of surviving spouse on Arthur’s death certificate. However, the Ohio registrar denied him so. This led to the landmark case that has brought respite to thousands of a long – ignored group.

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The case marks a huge victory for the LGBTQ community, which has faced much ridicule, ostracism, even humiliation for their sexual preferences and choices. It strikes a blow to the heteronormative view, which deems only the union of man and woman ‘natural’ that has formed the basis of society for so many centuries, completely suppressing and ignoring an entire section of the populous. More than anything else, it has given legitimacy to a community that has long been told that the only way to gain acceptance in this world is by shunning what is natural to it. The far – reaching impact of this judgement has perhaps been best summarised by its plaintiff, who after the judgement, was quoted saying – “Today’s ruling from the Supreme Court affirms what millions… already know to be true in their hearts: that our love is equal”.

For India, the most significant ruling in the context of homosexual rights was perhaps the Delhi High Court’s two-bench judgement in Naz Foundation v. Government of NCT Delhi – which struck down Section 377 of the Indian Penal Code, which criminalises homosexuality – and its subsequent reversal by the Supreme Court of India in December 2013.

Section 377 of the Indian Penal Code, a circa 1860 British legislation, charges anyone who has “carnal intercourse against the order of nature” with ‘unnatural offences’ – thereby including in its ambit same- sex intercourse.

Back in July 2009, the Delhi HC received much praise for its liberal interpretation of Articles 14, 15 and 21 of the Indian Constitution that grant Right to Equality, Prohibition of Discrimination on the Grounds of Sex and Protection of Life and Personal Liberty respectively. The judgement, delivered by Justice Shah and Justice Muralidhar received admiration for interpreting the word ‘sex’, as enshrined in the Constitution, to not only mean biological sex, but also sexual orientation. Moreover, the Court recognized that this was an unreasonable classification, which targeted homosexuals as the section was creating a class, and popular disgust was not a ground for classification under this Article.

The Supreme Court overturned this judgement on grounds of procedural technicality, as it believed that it was a subject that required debate and discussion in the Parliament to gain clarity.

Incumbent Chief Justice Roberts’ dissent in the Obergefell case demands special attention in the Indian context because his grounds for dissent are similar to the Supreme Court overruling. He writes in his dissent – ‘But this Court is not a legislature… Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise neither force nor will but merely judgment.

Before one goes on to draw a parallel between Obergefell v. Hodges and the Naz Foundation judgement, it is imperative to point out a fundamental difference between the apex courts of these two countries. It must be noted that the appointment of judges in the SCOTUS is not an apolitical process, as the President nominates judges, which must be confirmed by the Senate.

As opposed to this, the judges of the Supreme Court of India are appointed by the President on the advice of the Chief Justice of India and four associate judges; making the process largely free of party politics. A consequence of this – whether good or bad, it is unclear – is a distinct judicial autonomy in the three – pronged Indian democratic set up. This independence has now grown to be recognized as ‘judicial activism’.

Indian judicial activism finds its roots in the 1970s, with conscientious, opinionated and highly qualified judges such as Justices Khanna, Bhagwati and Hidayatullah joining top judicial ranks.

The Delhi HC’s 2009 verdict is a stellar example of judicial activism – a result of liberal interpretation of the Constitution, and an instance where the Court has attempted to derive morality from law. But perhaps one must also recognize that it is an overreach by the judiciary of what its conventional, designated role is said to be – an interpreter of the law. The role of framing, deleting, and amending the law is the Legislature’s in a traditional democratic setup. By choosing to attach meaning to terms in provisions, the judiciary expands the scope of its authority.

However, this procedural ground must be viewed in light of the judiciary’s noble and earnest attempt to bring about ideological change in society through case law.  Moreover, the check – balance system among the three wings of democracy makes space to ensure that each wing carries on its role in a manner that is most suitable to the attainment of the final objective of a welfare state.
To summarise, whether Obergefell v. Hodges marks an unparalleled victory for the LGBTQ community? – undoubtedly so. In fact, its consequences are greater in light of the boundless soft power the U.S. holds in the international arena. It will definitely influence gender law and politics all over the world in the years to come. The Indian Courts passed an opportunity similar to this, which would have aided the shedding of the image of a ‘traditional’, ‘reserved’ or ‘conventional’ society that has plagued India for centuries. In the Court’s defence, an overreach of authority is an act that no institution would like to commit. However, the American Supreme Court may serve as a gentle reminder to the Indian legal fraternity that when it comes to protecting the rights of its citizens, the Legislature, Executive and Judiciary all envisage public welfare as their supreme objective.

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