In Part 2 of this 2023 assessment, Indira Jaising examines how the judgment in Supriyo@Supriya Chakraborty versus Union of India leans away from the certainty of the Constitution towards amorphous culture and customs.
—
Read Part 1 here.
How has the appeal to custom and culture impacted the judiciary?
It appears to have had a direct impact as the judiciary too has started appealing to culture and customs to justify imposing restrictions on fundamental rights or writing them out of existence.
Nothing illustrates this better than the judgment of Justice P.S. Narasimha in the marriage equality case, that involved a challenge to the Special Marriage Act, 1954.
He begins by saying: "Marriage is a social institution and the status of the right to marry: There cannot be any quarrel, in my opinion, that marriage is a social institution."
Two questions arise from this bald statement. In what sense of the word is marriage a social institution?
One might answer this question by saying that its breakdown has consequences for the parties to the marriage and the children of the marriage. These are issues that can be addressed by secular law, not religious codes, as has been done for the Hindu law of marriage.
The learned judge then proceeds to say, "In our country, it [marriage] is conditioned by culture, religion, customs and usages. It is a sacrament in some communities and a contract in some other."
There is no logical connection between these two statements. Even if marriage was not governed by sacrament or contract, it would still have social consequences, for example, the homelessness of women or the abandonment of children.
“In what sense of the word is marriage a social institution?
It would still be a social institution in which the society has a stake and the State has a legitimate interest in intervening to prevent the adverse consequences of a breakdown.
The question of whether marriage is a sacrament or a contract has consequences only for the form in which the marriage is solemnised. Some people choose to solemnise marriage in a secular form, some in a religious form and some in both.
Now let us look at the issue of marriage as a contract. What is being referred to here is the nikah at the time of a Muslim marriage where the man and the woman agree to wed each other. That is the contract.
Also read: Also read: Indira Jaising writes to the CJI on subtleties of gender stereotyping, suggests combat measures
This should not be something special to Muslim marriages.
Is it being suggested that a Hindu marriage does not require the two parties to consent to the marriage simply because it is a "sacrament"?
That would be a preposterous proposition to make and hence one must presume that a Hindu marriage involving a saptadi also required the consent of the two parties to the marriage. This argument applies equally to a Parsi marriage or a Christian marriage or a secular marriage under the Special Marriage Act.
The judge then goes on to say, "State regulation in the form of codification has often reflected the customary and religious moorings of the institution of marriage.
An exercise to identify the purpose of marriage or to find its 'true' character is a pursuit that is as diverse and mystic as the purpose of human existence; and therefore, is not suited for judicial navigation."
This is a complete cop-out. To say that the law in any circumstances cannot decide the content of marriage is to avoid a decision on the subject. I have said elsewhere that it is an agreement, hence a contract requiring informed consent between two people to share their lives, their hopes and aspirations with each other, their joys and their tragedies, to have sexual intercourse with each other, the exclusion of the rest of the world.
“Is it being suggested that a Hindu marriage does not require the two parties to consent to the marriage simply because it is a "sacrament"?
In the choice of partner, the State has no legitimate interest. What the State does have a legitimate interest in is the distribution of assets and custody of children upon the breakdown of a marriage.
The judge then goes on to say, "But that does not render the institution meaningless or abstract for those who in their own way understand and practice it." Indeed people do have their own understanding of what marriage is and it is far from being meaningless or abstract.
But for the judge in question it does render the institution abstract since "to identify the purpose of marriage or to find its true character that is as diverse and mystic as the purpose of human existence".
It is the judge here who has abandoned his judicial robe and put on that of a mystic. One wonders why it is so important to give marriage such an exalted social status if one is not able to define it. Surely, it cannot be a social institution and a mystic one at the same time!
We are then told "the rules governing marriage and family, were largely customary, often rooted in religious practice. This exercise of codification, not always accurate and many a time exclusionary, was the product of the colonial desire to mould and reimagine our social institutions."
It is here that we can identify in the judgment the underlying major premise (unspoken). Marriages are largely governed by religion, (and should continue to be) save for the "colonial desire to remould and reimagine our social institutions".
There is amnesia about the fact that social reformers of Indian origin campaigned for the abolition of sati, for widow remarriage, for the right of woman to education, and for gender equality in the matter of inheritance.
“In the choice of partner, the State has no legitimate interest. What the State does have a legitimate interest in is the distribution of assets and custody of children upon the breakdown of a marriage.
To call it "colonial desire" is ahistorical. It also echoes the narrative of the ruling party that they are decolonising laws passed by the British— the language here is similar.
The subsequent mention of much-needed social reform does not make a difference to the underlying issue that marriage is a religious not a social institution governed by ancient custom which predates the Constitution of India. One must not forget the fact that custom, in order to be law, must be shown to exist since "time immemorial".
We are then told, "Even when our own constitutional State attempted codification and reform, it left room for customary practices to co-exist, sometimes providing legislative heft to such customary practices."
Different marriage laws are then cited to substantiate this. A glance at each of these indicates that they all relate to the form in which marriages may be solemnised, including diverse religious forms, but there is a failure to recognise that none of these laws address the substance of what is a marriage.
A bouquet of statutes offers a choice to parties to a marriage in what manner they wish to solemnise a marriage but what they have in common is the fact of a marriage by consent of the parties, not a "mystic" pursuit.
The form in which a marriage is solemnised cannot take away from the essential substance of a marriage, be it heterosexual or queer. There is an utter confusion between understanding the substance of the marriage and the form in which it is solemnised.
It is true that most marriage laws do have two substantive qualifications, one of age and the second the exclusion of prohibited degrees.
“The underlying major (unspoken) premise of the judgment is that marriages are largely governed by religion, (and should continue to be) save for the "colonial desire to remould and reimagine our social institutions".
This is so that the State can have a legitimate interest in ensuring that those who consent to a marriage are in a position to give informed consent and so far as the prohibited degrees are concerned, this is for reasons of maintaining the health of the community and prevent inbreeding.
They can be said to be reasonable restrictions on the right to marry, constitutional or statutory. What is more, the restriction on prohibited degrees can be waived by custom. Hence, custom, far from restricting the choice of partner, enhances it.
And now for the final punch, the underlying premise, "In my considered opinion, the institutional space of marriage is conditioned and occupied synchronously by legislative interventions, customary practices and religious beliefs.
"The extant legislative accommodation of customary and religious practices is not gratuitous and is to some extent conditioned by the right to religion and the right to culture, constitutionally sanctified in Articles 25 and Article 29 of the Constitution of India.
"This synchronously occupied institutional space of marriage is a product of our social and constitutional realities, and therefore, in my opinion, comparative judicial perspectives offer little assistance.
"Given this nature of marriage as an institution, the right to choose a spouse and the right of a consenting couple to be recognised within the institution of marriage, cannot but be said to be restricted."
So, there we have it, the right to marry is not a fundamental right but wait a minute, even if it was, it can be restricted by culture and religion.
In the hierarchy of norms, this represents a complete surrender of our constitutional freedoms and rights to "culture", howsoever defined, with which the courts cannot interfere.
“The form in which a marriage is solemnised cannot take away from the essential substance of a marriage, be it heterosexual or queer.
The logical fallacies and contradictions in this judgment are immense. Understating statutes is weak, with an inability to distinguish between formal validity and substantive validity of a marriage, an understanding of what are called "personal laws" is absent (notice that the words are not mentioned here).
If indeed there is no fundamental right to marry, what is there to prevent the State from telling us who to marry and who not to marry, or from saying Bharatiya culture will determine that question as well?
The judge points out, "Even today, much of the Mohammedan law of marriage is governed by religious texts and customs and there is hardly any State intervention."
We are not talking about the role of the State here but that of the judiciary in sitting in judgments over statutory law.
The judge forgot to mention that in Shayara Bano versus Union of India and others, the Supreme Court struck done the customary practice of triple talaq at the invitation of a Bharatiya Janata Party (BJP)-led government.
Further, the judge states, "The claim of the right to marry, de hors the existing statutory framework, is nothing but a claim to create a legally and socially enforceable status."
May we have a legal definition of "status"? Being unmarried is also a status, not created by law, so what is the relevance of the fact that marriage is a status?
Then there is the question of marriage laws not being standalone laws. "They interact in multifarious ways with succession, inheritance and adoption laws, to name a few."
But all these already have existing statutory frameworks. So far as inheritance is concerned, almost all personal laws permit the making of a will and the disposing of property to a greater or lesser extent.
Moreover, the Special Marriage Act was specifically amended to ensure that if two Hindus marry under the Special Marriage Act, they do not have to be governed by the Indian Succession Act, 1925 but will continue to be governed by their personal laws. Incidentally, this exception was made for Hindus alone and no other community.
Having concluded there is no right to marry, the judge concludes there is no right to a "union or an abiding cohabitational relationship". Perhaps he overlooked the definition of a "domestic relationship" in the Protection of Woman from Domestic Violence Act, 2005 which recognises relationships "in the nature of marriage".
The Chief Justice of India opines that "it is insufficient if persons have the ability and freedom to form relationships unregulated by the State". He goes on to state that there is no right to "recognition" of the relationship by the State.
But he forgets that in the Shayara Bano case, the argument made was the act of recognition of triple talaq was an act of the State and it should be derecognised by the court.
The judge says, "In my considered opinion, it is in positively mandating the State to grant recognition or legal status to 'unions' from which benefits will flow, that the doctrine of separation of powers is violated."
Was the doctrine of separation of powers violated when the court declared triple talaq unconstitutional?
“May we have a legal definition of "status"? Being unmarried is also a status, not created by law, so what is the relevance of the fact that marriage is a status?
Justice P.S. Narasimha continues, referring to his disagreement with the judgment of the Chief Justice of India, "Moreover, the right to a union cannot be located in Article 25 of the Constitution of India.
"Emphasis is placed on the term 'freedom of conscience' because that would situate in this freedom of conscience, the right not only to judge the moral quality of one's own action but also to act upon it.
"If that were permissible under Article 25, then the textual enumeration of freedoms in Article 19 becomes redundant since these freedoms can be claimed to be actions on the basis of one's own moral judgment. I find it difficult to agree with such a reading of Article 25."
There are two fallacies here. Article 25 explicitly allows us to judge the moral quality of our actions and to act on them so long as we do not harm public order, morality, health and the fundamental rights of others.
Nowhere does the judge state that nonheterosexual relationships are immoral. Moreover, way back in Maneka Gandhi vs Union Of India, the court pointed out that rights overlap with each other and create a "golden triangle". Hence, the fact that there is an overlap in the content of the right is of no consequence.
He concludes "for the reasons stated above the Petitions are dismissed".
Also read: A chequered year for the rainbow community
The judgment shows that, mirroring the Executive, our courts have set up a norm above the norm of the Constitution, i.e., culture, and will not enforce the text of the Constitution when it conflicts with the culture, howsoever defined. It is indeed the repudiation of the judicial function.
The legal community needs to be vigilant to prevent this failing court since the future of the rights of citizens seems to be in jeopardy.
The marriage equality judgment is the only judgment of the Supreme Court besides the one that held that Hinduism is a way of life and not religion alone which legitimises culture as the measure of whether a restriction on a right was reasonable or not.
We note that Article 13, which declares all laws that violate fundamental rights void, defines law to include "custom" but it does not include 'culture' as law. Yet today we have a judgment that clearly permits culture to trump fundamental rights.
If the cultural test of "reasonableness" can be used to uphold governmental action, why can it not be used to interpret the Constitution itself or the validity of a constitutional amendment for that matter?
Keshavananda Bharati versus State of Kerala, which was decided in 1973, held that the basic features of the Constitution, such as fundamental rights, secularism, democracy and federalism, could not be amended even by a Constitutional amendment.
Yet, today we see the same result as we would by an amendment by the creation of a norm higher than and inconsistent with the values of the Constitution.
A new set of practices has replaced constitutionalism and legality and has been elevated to the level above the Constitution with reference to which the Constitution and its basic features are to be interpreted. Rights, as we know them, are replaced by duties, negating the entire chapter on fundamental rights.
“Was the doctrine of separation of powers violated when the court declared triple talaq unconstitutional?
Our fundamental duties now take precedence over our fundamental rights. We must all do our 'kartavya' without any expectation of freedom. A new language of politics and consequentially law has been invented in place of constitutionalism.
We are told that there is an "intrinsic dharma" of the people of India which is ancient and predates the Constitution. Once a norm above the Constitution is created, it is easy to see why there is no need to amend the Constitution.
That is why I say that this has been the year of the surajmukhi court.
Read Part 1 here.