The marriage equality judgment goes against the Supreme Court's own settled jurisprudence. The court has also applied non-existent constitutional standards.
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ON October 17, the Supreme Court of India unanimously held that there is no fundamental and unqualified right to marry.
A Bench comprising Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justices S. Ravindra Bhat, Sanjay Kishan Kaul, P.S. Narasimha, and Hima Kohli was dealing with a batch of petitions seeking marriage equality for non-heterosexual couples in Supriyo@Supriya Chakraborty versus Union of India.
The Bench also held, by a 3:2 majority (Justices Bhat, Narasimha and Kohli), that there is no right to intimate association under Articles 19(1)(a), (c) and (e); 21 and 25 of the Indian Constitution.
The CJI in his opinion referred to the Roberts versus United States Jaycees of the United States which held that the right to form an association includes the right to form intimate associations.
In Roberts, the court had held that one of the facets of freedom of association is the freedom to enter into intimate human relationships secure from undue State interference. This judgment was relied upon by one of the petitioners during the Supriyo hearings.
“The judgment is a step forward on certain (read: secondary) issues, it clearly is two steps backwards on the right of non-heterosexual couples to marry.
On the brighter side, the court unanimously recognised: "Transgender persons in heterosexual relationships have the right to marry under existing law including personal laws which regulate marriage. Intersex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate marriage."
While the judgment is a step forward on certain (read: secondary) issues, it clearly is two steps backwards on the right of non-heterosexual couples to marry.
This article identifies the main prayers in this case and argues that the court has not just failed to determine them but has also acted against its own jurisprudence.
Firstly, the court indulged in a bit of a strawman argument by declaring that there is no fundamental right to marry.
Do citizens in India enjoy the right to marry? Obviously they do, as the millions of heterosexual marriages that take place every year under the full protection of the law bear witness. According to one of the statistics, one in every four marriages worldwide happens in India.
Also read: Marriage equality judgment: An explainer
So the simple thrust of the matter was: Why should non-heterosexual couples not have the same rights of marriage that heterosexual couples enjoy? Does this exclusion amount to differential treatment or is there an intelligible differentia based on reasonable classification?
To skirt around the issue by asserting that there is no fundamental right to marry is not saying much, because heterosexual couples continue to have the right to marry after the October 17 judgment, while non-heterosexual couples continue to be denied an equivalent right.
The petitioners argued that they were in a disadvantageous position because of statutory exclusion. The court was asked to determine the reason why the State had made a classification between the two categories: heterosexual couples and non-heterosexual couples.
“So the simple thrust of the matter was: Why should non-heterosexual couples not have the same rights of marriage that heterosexual couples enjoy? Does this exclusion amount to differential treatment or is there an intelligible differentia based on reasonable classification?
The court could either have determined this issue by tracing it from its previous jurisprudence or could have determined if there is a legitimate State interest in not recognising non-heterosexual marriages based on considerations such as the ability to procreate and sustain population, and to protect public morality in maintaining this classification.
On the first consideration, the Supreme Court has repeatedly held, for example, in Shafin Jahan versus Asokan K.M. & Ors (2018), Shakti Vahini versus Union of India (2018), Laxmibai Chandaragi B. versus State of Karnataka (2021) and Deepika Singh versus Central Administrative Tribunal (2022), that every person is entitled to marry a person of their choice.
This interpretation runs harmoniously with the court's interpretation of allocating the unenumerated right to privacy in Article 21 (Justice K.S. Puttaswamy & Anr. versus Union of India & Ors), thereby ensconcing the right to choose a partner within it.
What is marriage if not the legislative articulation of these fundamental rights?
The US jurisprudence on privacy (Griswold versus Connecticut), cited by the court in Navtej and Puttaswamy, accepts the position that privacy as a right shields various aspects of a person's life— including sexuality, marriage, procreation and contraception— from State interference.
In fact, in the concurring opinion of Justice R.F. Nariman in Puttaswamy, it was recognised that the right to privacy extends beyond "making vital personal choices such as the right to abort a foetus; rights of same sex couples— including the right to marry; rights as to procreation, contraception, general family relationships, child rearing, education, data protection, etc."
The judgment in Dobbs versus Jackson Women's Health Organisation may have overturned this position with regard to procreation and contraception in the US, but the Supreme Court of India has made it clear that it does not want to be associated with the Dobbs's judgment.
The CJI said as much— and not without a hint of pride— when Solicitor General for India (SGI) Tushar Mehta tried to insert Dobbs into the debate during the marriage equality hearings, "We have gone far beyond Dobbs in India".
The court's interpretation of allocating unenumerated rights to the level of fundamental rights has mostly been liberal (right to privacy, right to housing, right to clean, safe and healthy environment, and right to education to name a few cases).
However, the court unanimously held that the right to marry did not arise as a consequence of its previous jurisprudence in Navtej Singh Johar & Ors versus Union of India (2018), National Legal Service Authority versus Union of India 2014 and Naz Foundation versus Government of NCT of Delhi (2009).
“The CJI said as much— and not without a hint of pride— when Solicitor General for India (SGI) Tushar Mehta tried to insert Dobbs into the debate during the marriage equality hearings, "We have gone far beyond Dobbs in India".
The CJI writes in his opinion that Justice Nariman had "only made a passing reference to the right to marry" in Puttaswamy.
According to Justice Bhat, "In absence of any enacted law which obliges meaningful facilitation of transport such as roads, it is hard to visualise that a citizen can approach the court and seek the construction of a road to enforce the right to travel."
On the second consideration, the court was to determine whether it was in favour of the traditional understanding of marriage (as exclusively heterosexual) for the ability to procreate or because it thought non-heterosexual marriages hampered State interest by violating public morality under Article 19(2) & (4).
The ability to procreate may be one of the necessary implications of marriage. However, the law does not prohibit those who are unable to procreate from getting married. Simply put, the law only prescribes a minimum age of marriage. This encompasses all those categories of persons who may not have the ability to procreate but still choose to solemnise marriage.
Further, irrespective of whether social morality is against the acceptance of non-heterosexual marriages, the Supreme Court in Navtej held that the only standard of testing morality is through constitutional morality.
The current CJI, in his judgment in Navtej, held: "Constitutional morality requires that this court must act as a countermajoritarian institution which discharges the responsibility of protecting constitutional entrenched rights, regardless of what the majority may believe."
In Shafin Jahan, the Supreme Court held: "Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from the disapproving audience."
The exclusion of non-heterosexual couples fails the test of Article 14 which not only secures persons against arbitrary laws but also the arbitrary application of laws (Chief Justice Patanjali M. Sastri in The state of West Bengal versus Anwar Ali Sarkar). There does not exist any reasonable justification for this exclusion which is discriminatory and violates Articles 14, 15, 19(1)(a)&(1)(c) and 21.
The court upheld the constitutionality of the Special Marriage Act, 1954. The petitioners argued that a constitutionally compliant interpretation of this secular law could be done to accommodate gender–neutral situations. That is, instead of using 'husband' or 'wife,' the court could read in as 'spouse'.
Although the term 'spouse' is the preferred one in the Special marriage Act, Section 4 uses the terms 'male' and 'female' to prescribe an age limit. The petitioners offered that either a common age for all genders could be set or declare that the age of male will be apply in male–male relationships and the age of female will be applicable in female–female relationships.
Therefore, the court could have chosen from one of three options: declaring the Special Marriage Act unconstitutional, reading down specific provisions of the Act or reading in gender-neutral terms into the Act to expand its scope.
During the hearings, when the CJI was offered this proposition of reading in a gender-neutral paradigm into the legislation, he observed: "The object of the [Special Marriage Act] was to bring in its fold people who would be governed by matrimonial relationships apart from their personal laws. So, surely law is capable of being broadly read according to you, so as to take into account more stable relationships of same-sex couples."
“According to Justice Bhat, "In absence of any enacted law which obliges meaningful facilitation of transport such as roads, it is hard to visualise that a citizen can approach the court and seek the construction of a road to enforce the right to travel."
He now says: "This court cannot either strike down the constitutional validity of the Special Marriage Act or read words into the Act because of its institutional limitations. This court cannot read words into the provisions of the Act … because that would amount to judicial legislation."
Justice Bhat says that the Special Marriage Act makes a rational nexus as it creates an intelligible differentia based on sexual orientation.
The objective of the legislation suggests that no such classification exists. The only classification that the legislation creates is between marriages that were socially acceptable and those which were not socially acceptable. That is why the disability was cured by offering a secular law allowing marriage irrespective of caste and religion.
Like 'religion' and 'caste', 'sexual orientation' is a disability which shares the same space, at least in Article 15(1).
To this argument, Justice Kaul, in his minority opinion, writes: "The stated objective of the Special Marriage Act was not to regulate marriages on the basis of sexual orientation".
Moreover, just because the Special Marriage Act by its nature intends to protect heterosexual relationships, that does not mean an intention could be attributed to the exclusion of non-heterosexual relationships.
In absence of the explicit exclusion of 'non-heterosexual', and the use of terminology like 'spouse,' Justice Kaul's reference to the theory of reading in constitutional values to harmoniously interpret the statute could be applied in a manner which is not just constitutionally complaint but also reflects the societal changes since its enactment.
Interestingly, Justice Kaul holds the Special Marriage Act to be violative of Article 14.
Justice Kaul, along with the CJI and Justice Bhat, holds that the Special Marriage Act cannot accommodate non-heterosexual relationships because of the "multifarious interpretive difficulties" as the entitlements devolving from marriage are spread across a proverbial spider's web of legislation and regulations. Or, in the words of the SGI Mehta, "it is going to have a cascading effect across the disparate laws".
“Irrespective of whether social morality is against the acceptance of non-heterosexual marriages, the Supreme Court in Navtej held that the only standard of testing morality is through constitutional morality.
The mere possibility of legislation becoming unworkable does not preclude the court from protecting fundamental rights. On the contrary, this argument highlights that the Special Marriage Act is only one of the existing web of discriminatory legislation.
Gender and sexual minorities are not just fighting against historic injustice but also against discrimination which is structural in nature.
Since the court has unanimously held that gender and sexual minorities in India continue to face discrimination, the court could have acknowledged that one of the ways discrimination is perpetuated upon them is through conversion therapy to change their innate sexuality and force them into heterosexual marriages.
Sometimes, many gender non-conforming persons end up solemnising lavender marriages.
In the Deepika judgment, the current CJI acknowledged that in dealing with social legislation, the court must give a liberal and purposive interpretation that promotes the constitutional goal of social justice.
In furtherance of this, the current CJI had written: "The predominant understanding of the concept of a 'family' both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. This assumption ignores both the many circumstances which may lead to a change in one's familial structure, and the fact that many families do not conform to this expectation to begin with.
"Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation".
At this juncture, it is crucial to address Justice Bhat's observation that enabling an interpretation of the Special Marriage Act to include non-heterosexual couples would expose women to "unintended vulnerabilities".
On the contrary, such accommodations would challenge the gendered roles in marriage which reinforces hierarchical power structure in society. While marriage as an institution has gained social acceptance, the critiques of feminist scholars say that the institution is oppressive towards women.
“In the Deepika judgment, the current CJI acknowledged that in dealing with social legislation, the court must give a liberal and purposive interpretation that promotes the constitutional goal of social justice.
The emergence of queer rights movement in India has simultaneously improved the condition of rights for other vulnerable communities, particularly women. By challenging the inherent power dynamics in sexual and gender relationships, the queer movement creates space for everyone facing the rough end of sexual and gender relationships.
The court recognised the right of transgender persons to marry, but with a qualifier.
The court stated that the marriage must be a heterosexual marriage, where one person should either be a cisgender man or woman. This unfortunately re-emphasises the ascriptive characteristics of gender identity.
The qualifier goes against the idea of the right to self-determination, and that gender identity and sexual orientation are innate characteristics of one's personal liberty as held in a plethora of cases including Navtej.
Most importantly, this essentially results in the violation of NALSA guidelines. It has been recognised that Transgender Persons (Right to Protection) Act, 2019 already dilutes this human right. The law makes it a statutory requirement for a transgender person to apply for a gender identity certificate to seek recognition for something which was purposely considered intrinsic.
Further, this is not a new determination. In 2019, in Arunkumar & Sreeja versus The Inspector Gender of Registration & Ors, the Madras High Court held that the term 'bride' under Section 5 of the Hindu Marriage Act, 1955, cannot have a static or immutable meaning. In this regard, the court held that a marriage solemnised between a man and a trans-woman under the Act is a valid marriage.
Lastly, despite the right being significant, one cannot stop wondering why the court read in a State's positive obligation despite the State's clear position that it does not wish to regulate transgender marriages but did not do so for the larger community.
During the marriage equality hearings, Mehta had told the court that the legislature had an opportunity to include the right to marry under the Transgender Persons (Right to Protection) Act and they purposely decided otherwise.
Is this not an act of judicial legislation?
While the majority recognised that there is no joint right to adoption of gender and sexual minorities, the minority held the Central Adoption Resource Authority (CARA) circular unconstitutional. The circular states that live-in relationships cannot be considered at par with marriage and thus, adoption should not be allowed for them.
Irrespective of marital status, the ability to procreate may have a rational nexus with the object sought in certain cases. However, it clearly does not exist in the case of adoption.
The Ghaidan versus Godin-Mendoza judgment can be relied to suggest that the artificial distinction made between heterosexual and non-heterosexual couples should have no bearing on why adoption and surrogacy rights are given to the former but not to the latter.
This is nothing but a violation of the substantive equality protection offered under Article 15.
Justice Kaul recognises that gender and sexual minorities in India face intersectional discrimination not just based on their sexual orientation but also on other markers of identity.
“One cannot stop wondering why the court read in a State's positive obligation despite the State's clear position that it does not wish to regulate transgender marriages but did not do so for the larger community.
Their inability to access protection that is offered to heterosexual couples by the State through the democratisation of personal relationships is the issue here. For non-heterosexual couples, the need for the State to democratise their personal relationships holds immense importance because this is nothing but a positive postulate of anti-discrimination and equality guarantees.
Also read: In another first in Asia, Taiwan grants joint adoption rights to non-heterosexual married couples
The decriminalisation of their existence is a negative postulate of the equality code guaranteed under Articles 14, 15(1), 16 and 17. This right can never be effectively realised unless there is a positive obligation to ensure that private life is fully protected.
But this is not to argue that the court has been asked to compel the State to create an institution of marriage.
This runs contrary to previous jurisprudence of a fundamental right to intimate association which been upheld in Navtej and Puttaswamy. In fact, during the hearing, the court said that by decriminalising homosexuality, the court necessarily contemplated that non-heterosexual couples enjoy stable marriage-like relationships.
“Justice Kaul recognises that gender and sexual minorities in India face intersectional discrimination not just based on their sexual orientation but also on other markers of identity.
Instead of invoking a heightened protection for this community, the court made them wholly dependent on the "high powered committee" whose existence is unknown at this moment.
It is difficult to consider this judgment as good precedent because it effectively challenges the settled jurisprudence of this court on many issues.