Justice Anand Venkatesh of the Madras High Court has innovated yet again. On November 17, 2023, in Sushma vs Commissioner of Police, 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. 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. While all the judges paid eloquent lip service to the rights of queer couples to form relationships, to cohabit and to enjoy intimacy under Article 21 of the Constitution, the action was a rather different story. The minority endorsed recognition of a bouquet of entitlements but failed to carry the matter further by spelling out rights and giving focused directions. The majority wiped out even this timid advance and went into wholesale retreat by abandoning the field and leaving same-sex couples to the mercy of the government and the legislature, whose policy on this matter is clear. The State should not interfere, the State should protect them from violence (should it not for everyone?) but the State need not give them legal status from which rights and entitlements would follow. How an avowedly, and loudly, liberal and progressive Court can become so retrograde is a question rich for enquiry.
Against the backdrop of gloom and despondency, Justice Venkatesh shines not just a candle but a strong beacon lamp. 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. Since the SC has declared that statute, i.e. the Constitution and marriage laws, cannot be invoked, this Judge has adroitly shifted from the forward line to the midfield and taken possession of the ball of contract. With this, 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 in society. The State government is directed to put this into effect. The analogy of a football game is that while star-studded forwards bungle five easy goals, a determined half-back boots the ball from 50 yards out into the corner of the goalkeeper’s net.
