Attaining an equitable justice system...how difficult is it?

 

The Supreme Court of India has  reserved orders  in cases relating to same-sex marriages. Can the Supreme Court be liberal in its findings and conclusions on issues relating to personal liberties of citizens of  a democracy? 

 It would be  pertinent to remind the nation that the Supreme Court, had in the year 2006, made it mandatory to register all marriages irrespective of the religion of the parties. Subsequently only four states among the  Union have formally mandated the registration of marriages through legislation. When state governments adopt a lackadaisical attitude towards directives of the highest court of the nation, such governments should be refused the right to agitate their grievances before the very same court whose directives they chose to ignore and circumvent. 

The Supreme Court is yet to hear the extremely important case on electoral bonds that is directly related to the economy of our nation. It has spent nine days listening to same sex marriages when in the first place its directives on registration of marriages issued as early as 2006 have not been complied with by most States. It has clearly exhibited its stated position by refusing to stay the electoral bonds scheme and I believe that the highest court of our nation has taken  a political stance favoring the ruling government and failed in its duty to be equitable and dispassionate in deciding cases that have huge impact on the future of our democracy. 

Although it is argued that marriage under the Hindu Marriage Act is not a contract, it should be noted that when families of two parties arrange a heterosexual marriage between two people, most of the families have an event known as the ‘Nischayathartham’, or 'Engagement ceremony', the priest draws up a contract to record the agreement between the families to enter into a contract of marriage between two members of their families deciding on a date for the ceremony of wedding. Although cases are not filed based on the document signed by both the families if one of them calls of the wedding, it is nevertheless a contract with witnesses from both the family and friends. When it comes to divorce, an agreement is reached as to the custody of children, wealth and immovable property that is registered as a document of court for the parties to sever their ties to each other.  So, why is it contended that marriages under Islam and Christianity are contractual and Hindu marriage is a  sacrament unity. 

Considering all this, the complexity of deciding same-sex marriage can be resolved by courts by  pre-nuptial and post-nuptial agreements by any party wanting to enter into a marriage regardless of  religion or gender the parties. The sanctity in a marriage depends on the extent to which the parties are willing to commit themselves to each other and a signed contract does not reduce the relationship to being transactional.

If the Apex court is genuinely neutral in its outlook towards such politically sensitive cases, it needs to rise above all forms of compulsions and prejudices by initiating suo motu contempt proceedings against state governments that have failed to usher in police reforms as recommended by the Apex Court and initiate legislative efforts to  mandate registration of marriages and call for relevant amendments under existing laws on registration and  payment of stamp duty. 

Issues of national importance that call for political non-interference have been relegated to the backbench  to help those who focus  on vote-gathering  tactics and preventing politically inconvenient situations for national and regional political parties. As utopian  it may sound, failure of the highest judicial authority to take forward democratically valid reforms will lead us into becoming a dystopian nation.