Aakar Patel | Same-sex marriage will eventually be legal… Why is India dragging its feet?

Columnist  | Aakar Patel

Opinion, Columnists

One reason is that the Supreme Court has been slow to determine whether the moves made by this government are constitutional

Gay rights campaigners have shown themselves to be extremely effective globally and there is little doubt that they will win on this issue in the course of time. (Photo: Pixabay)

India has rejected marriage equality between the sexes after the Union government opposed gay marriage and the Supreme Court agreed with it. The countries in the G-20 grouping that have allowed marriage equality are Argentina, Australia, Brazil, Canada, France, Germany, Mexico, South Africa, Spain, the United Kingdom and the United States. India stands with nations like China, Indonesia, Japan, Russia, Saudi Arabia and Turkey. Gay rights campaigners have shown themselves to be extremely effective globally and there is little doubt that they will win on this issue in the course of time. The question is why India is dragging its feet over something that is inevitable.

The answer is not very easy to find. India has a new Parliament building but the problem with the old laws remain. One reason is that the Supreme Court has been slow to determine whether the moves made by this government are constitutional. This is or should be the apex court's primary role, along with securing individual liberty (another area where it could be argued conclusively that it has been remiss).

This reluctance especially shows in instances where the government is heavily invested, especially the Prime Minister. For years, groups and individuals have been pleading with the Supreme Court to decide the constitutionality of some laws and actions of the Narendra Modi government, but this has been in vain.

Of late, the court has taken up some of these issues, but none of them has been decided. It is important they be kept in the realm of the public domain. Three of them are about the gutting of Article 370 which conferred a special status on the erstwhile state of Jammu and Kashmir (where a challenge was filed in August 2019), on electoral bonds (filed in September 2017) and on the Citizenship Amendment Act (filed in December 2019).

It is not necessary to repeat why these are among the things the Prime Minister is most heavily invested in, but it is necessary to go through what these issues are about.

The electoral bonds issues essentially undermines India’s democracy. In one line, that is why it should be struck down. What it allows and has allowed for the last half dozen years is anonymous and unlimited funding of political parties. The bonds were opposed by the Reserve Bank of India and by Election Commission. Both bodies were overruled by the Modi government.

The bonds are bearer instruments, meaning that they are cash. A person can purchase a bond, sell it to a third party -- a foreign government, a criminal gang -- which can then donate it to the political party of its choice. The most popular denomination of the bonds is the most valuable one: Rs 1 crore. I will leave it to readers to consider which one of us has or is willing to give Rs 1 crore to donate to the political party we vote for. The vast majority of this money has gone to the BJP.

Despite the RBI’s objection and the seriously problematic questions thrown up on democratic integrity, the Supreme Court has not decided on this matter in six years.

Jammu and Kashmir is the only part of South Asia to not have an elected government and hasn’t had it since June 2018. That was more than five years ago, and in a few months after that Article 370 was “read down” by sleight of hand. Was this constitutional? Much if not most of the legal commentary tells us the answer is no. Again, a matter of national importance and a matter concerning our democracy and also a matter in which the Prime Minister had a stake. The court did not prioritise it.

The Citizenship Amendment Act set a cut-off for refugees from three neighbouring states (Afghanistan, Bangladesh, Pakistan) who had come to India before December 31, 2014. Of these, Muslims would be filtered out and the rest given citizenship. Why only three neighbours and why not Sri Lanka, China and Burma? That the law does not explain. Why only Muslims and why not other marginalised groups? That the law does not explain.

The home minister told us we have to read the CAA in conjunction with the National Register of Citizens. The first law would isolate Muslims and the second law would incarcerate them. The brave protests of 2019 and 2020 pushed the government back, though at great cost, and the BJP has not yet implemented CAA, though almost four years have gone since it was passed. The Supreme Court has not determined its constitutionality though it was challenged immediately.

This, then, has been the record. There are other instances where the court has not done what many think it should have. When the government was accused of spying on citizens illegally, it got a free pass. It is unclear what the court has done with the Pegasus matter. One headline from last year tells us the story: “No evidence, Govt didn’t cooperate: SC panel on Pegasus”. The apex court could and should have forced the government to file an affidavit to say whether or not it was using this spyware on Indians. It chose not to do so.

For the longest time, the court did not even hear important matters that the government did not want it to. Of late, it has begun to form benches. Meanwhile, a lot of the damage has been done and continues to be done, particularly on matters like the electoral bonds.