The marriage equality judgment tries to bury the core issues of rights of sexual and gender minorities in India under a ton of politically correct words, but all the polemics cannot hide the fact that if you are a non-heterosexual couple in India, marriage is still a distant dream for you.
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ON DAY 1 of the hearings in a batch of petitions seeking marriage equality in India, senior advocate and former Attorney General for India Mukul Rohatgi, appearing for the petitioners, had beseeched the court, “We cannot wait for the legislature and there cannot be a mandamus against the Parliament. Our lives will be gone by then.”
Today, in the much-awaited judgment in Supriyo@Supriya Chakraborty versus Union of India, the Supreme Court held that there is no fundamental and unqualified right to marry.
In effect, it has postponed the right to equality of sexual and gender minorities in India.
The Constitution Bench of five-judges was headed by the Chief Justice of India (CJI) Dr. D.Y. Chandrachud and also comprised Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha.
Here are some major takeaways from the judgment.
Right to marry of non-heterosexual couples
Whether non-heterosexual couples have a fundamental right to marry?
The Bench has held 5–0 that non-heterosexual couples do not have a fundamental right to marry.
Whether the Special Marriage Act, 1954 can accommodate gender-neutral terms, thereby allowing non-heterosexual couples to exercise the right to marry?
The Bench has held 5–0 that the Special Marriage Act, 1954 is not unconstitutional, nor can the Act be interpreted to include the right of marriage of non-heterosexual couples.
The Bench has held that declaring the Act unconstitutional would be throwing the baby out with the bathwater— the baby being the right to marriage of inter-caste and inter-religious marriages and the bathwater being the right to marriage of non-heterosexual couples.
The Bench held that declaring the Act unconstitutional would be throwing the baby out with the bathwater— the baby being the right to marriage of inter-caste and inter-religious marriages and the bathwater being the right to marriage of non-heterosexual couples.
The CJI cited ‘institutional limitations’ for his opinion on this issue.
The judges differed on the reasoning to hold that the right of non-heterosexual couples to marry cannot be accommodated in the Special Marriage Act.
Justice Bhat held that the argument that since the Special Marriage Act does not include non-heterosexual couples, it creates an arbitrary classification between classes of persons without intelligible differentia, is far-fetched.
Justice Bhat also stated that accommodating gender-neutral situations in the Special Marriage Act would act contrary to the objective of the legislation. He stated that it could result in women being exposed to “vulnerabilities”.
Justice Narasimha stated that the right to marriage is either recognised by statutes or flows from customs, and non-heterosexual unions fall in neither category.
Transgender person’s right to marriage
The CJI remarked that while non-heterosexual couples do not have a right to marriage, transgender persons do have a right to marriage. The Bench held that a transgender person’s marriage will be qualified as heterosexual marriage because one spouse will be designated ‘husband’ and the other ‘wife’.
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The other four Justices concurred with the CJI on the issue.
During the hearings, Solicitor General Tushar Mehta had argued that the intention of the legislature is clear— it does not want to recognise marriage outside of its traditional understanding.
He had told the court that the legislature had an opportunity to grant the right to marriage to transgender persons under the Transgender Persons (Protection of Rights) Act, 2019. However, the Parliament did not do so.
In 2019, Justice G.R. Swaminathan of the Madras High Court held that a person who is born intersex but identifies herself as a woman should be treated as “bride” under Section 5 of the Hindu Marriage Act, 1995.
Right to form associations
By 3–2, the Supreme Court has held that non-heterosexual couples do not have a fundamental right to form associations.
This was in response to the argument by some of the petitioners that marriage is a form of association within the meaning of Article 19(1)(a) and 19(1)(c) of the Indian Constitution.
One of the counsels for the petitioners, Anand Grover, referred to the Supreme Court of United States’ judgment of Griswold versus Connecticut (1965), wherein the court through Justice William O. Douglas observed: “We deal with a right of privacy older than the Bill of Rights, older than our political parties, older than our school system. Marriage is coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions,” to substantiate the concept of intimate association.
Justice Bhat stated that just because he does not recognise civil unions, it does not mean that gender and sexual minorities are precluded from entering into relationships where they can cohabit without the State’s unnecessary and arbitrary interference.
The two minority judgments led by the CJI and Kaul recognised the fundamental right to form intimate associations and civil unions respectively.
The CJI stated, “Rights must flow out of this association through the theory of a unified thread of rights which must extend to recognising queer couples as a family in ration cards, enabling them to nominate for joint bank accounts, and granting them the rights flowing from pension and gratuity.”
“They must have access to goods and services,” the CJI added.
Whereas Justice Kaul held that the recognition of civil union is a step forward in the direction of marriage equality.
However, both the minority judgments state that the right cannot be elevated to a relationship in the substance of marriage.
Justice Bhat termed the right to intimate association or civil union as the right to be in a relationship. However, he added that the right cannot be elevated to hold that entitlements or consequential benefits flowing the right to marriage.
He added that such recognition must flow from statutory law.
Justice Bhat stated that just because he does not recognise civil unions, it does not mean that gender and sexual minorities are precluded from entering into relationships where they can cohabit without the State’s unnecessary and arbitrary interference.
This includes the right to choose one’s partner of choice, he added. He asserted that the right flows from Article 21 of the Constitution.
Justice Narasimha held that the right to civil union cannot mirror the institution of marriage and thus the recognition of civil union is not constitutionally permissible.
Right to adopt
The CJI held that gender and sexual minorities have the right to adopt under the regulations framed by the Central Adoption Resource Authority, 2021, under the Juvenile Justice (Care and Protection of Children) Act, 2015.
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He referred to Section 57 of the Juvenile Justice Act, which prescribes eligibility criteria for prospective adoptive parents.
The CJI interpreted Section 57(2) of the Act to state that the use of the term “in case of a couple” means the consent of both “spouses” is required in the adoption of a child. He added that the Section does not state that the consent of two “married spouses” is required.
The use of the term ‘spouse’ in Section 57(2) does not mean that it excludes unmarried couples from adopting, the CJI said.
However, the Central Adoption Resource Authority circular bars unmarried couples from adopting jointly under Regulation 5(3). The CJI held that Regulation 5(3) is outside the scope of the parent legislation and violative of Articles 14 and 15 of the Constitution.
Justice Narasimha concurred with Justice Bhat in upholding the constitutionality of the Central Adoption Resource Authority guidelines.
Miscellaneous observations
The judgment ultimately leaves all the issues concerning the marital rights of sexual and gender minorities to the legislature. The court has stated that since the State had promised to constitute a committee to determine the issues faced by queer persons in their daily lives, the legislature should have the prerogative to decide these issues.
The marriage equality petitions were filed five years after a Supreme Court five-judge Bench decriminalised homosexuality in Navtej Singh Johar versus Union of India in 2018.
Some other issues have been briefly discussed below.
Does the court’s power of judicial review for the non-enforceability of fundamental rights in this case go against the separation of powers doctrine?
The CJI stated that contrary to what the respondents claimed, the power of judicial review promotes the doctrine of separation of powers. This is because the power of judicial review ensures that no organ of the government acts in excess of its constitutional mandate.
The CJI held that the doctrine of separation of powers does not act as a stumbling block for this court to act on directions or Orders, if any, in this case, for the enforceability of fundamental rights.
Is queerness an elitist concept?
Some of the observations made by the CJI are significant. The CJI addressed the issue of whether marriage equality is an urban-elist concept. The respondents in their preliminary objections argued that marriage equality demand merely represents an urban elitist view.
The CJI today said: “Yet, even a limited exploration of the literature and reportage on the subject makes it abundantly clear that homosexuality or queerness is not solely an urban concept. Nor is it restricted to the upper classes of the privileged communities.”
He added: “Similarly, they may be queer regardless of their caste or economic location. It is not just the English-speaking man with a white-collar job, who lives in a metropolitan city and is otherwise affluent who can lay claim to being queer. Also, and equally, the woman who works on a farm in an agricultural community.”
The CJI also addressed that living in the city does not necessarily mean a person is an urban elite. He added that by classifying all persons living in urban spaces as urban elite renders many categories of persons including those who are poor and marginalised invisible.
Justice Bhat concurred with the opinion of the CJI that queerness is not an urban elitist concept and that it is a natural phenomenon.
Is marriage a stagnant concept?
The CJI in this part of the judgment stated that the institution of marriage is neither a static nor a stagnant concept.
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He stated that the institution of marriage is characterised by the changes that have taken place throughout history.
He said: “All social institutions transmogrify with time and marriage is no exception. From sati to widow remarriage to child marriage to inter-caste marriage, the institution of marriage has metamorphosed. The institution, as we know it today, would perhaps be unrecognisable to our ancestors from 200 years ago.”
What is the relationship between marriage as an institution and the need of the State to regulate it?
The CJI stated that marriage as a concept was institutionalised because the State felt the need to regulate it.
The CJI also addressed that living in the city does not necessarily mean a person is an urban elite. He added that by classifying all persons living in urban spaces as urban elite renders many categories of persons including those who are poor and marginalised invisible.
He added that even if some of the changes were a result of social activism such as sati pratha, it is the legislature which ultimately responded to these changes.
Does the State have a positive obligation towards recognition of the right to marry?
The CJI rejected the argument of the petitioners that by decriminalising homosexuality, the State has inherited a positive obligation to recognise the right to marry.
He stated that marriage may not have attained social and legal significance if the State had not regulated it.
What did the court say about queer persons’ right against discrimination?
The CJI, in his directions, stated that the State must make efforts to ensure that queer persons do not face any discrimination. This view was concurred with by Justice Bhat.
Justice Kaul used an intersectional approach to address the discrimination faced by gender and sexual minorities in India.
Both the CJI and Justice Kaul recommended the need for anti-discrimination laws addressing the harassment faced by queer persons in India.
The CJI adopted a substantive equality approach, which he had already done in Navtej Singh Johar versus Union of India (2018) by recognising that the term ‘sex’ including ‘sexual orientation’ for the purpose of remedying discrimination faced under Article 15 of the Constitution.
The CJI also directed that conversion therapy should be prohibited. The Indian Association of Clinical Psychologists clearly states that conversion therapy is not medically backed and has a negative impact on the well-being of an individual.
The National Medical Commission in 2022 declared conversion therapy as professional misconduct.
The CJI also issued certain directions to safeguard the rights of gender and sexual minorities. He stated that before registering a first information report against a queer person, the police must conduct a preliminary enquiry.
The police must not force queer persons to return to their habitual residence.
Lastly, the police should not summon queer persons with the sole intention to enquire about their sexual orientation.
The previous milestone
The marriage equality petitions were filed five years after a Supreme Court five-judge Bench decriminalised homosexuality in Navtej Singh Johar versus Union of India in 2018.
Also read: Hong Kong recognises same-sex unions
The judgment upheld the 2009 Naz Foundation versus Government of NCT Delhi judgment of the Delhi High Court, which for the first time read down Section 377 of the Indian Penal Code, (IPC) 1860 and decriminalised consensual sex between same-sex adults.
The high court considered it to be violative of constitutionally guaranteed rights under Articles 14, 15 and 21 of the Indian Constitution.
The Supreme Court took cognisance of the various petitions filed in different high courts and transferred all of them to itself.
Earlier, Section 377 stated that consensual sex between same-sex adults is against the “order of nature”.
In 2013, a division Bench of the Supreme Court, in an appeal, overturned the Naz Foundation judgment in Suresh Kumar Koushal and Anr versus Naz Foundation & Ors.
The court reasoned that Section 377 did not suffer from any constitutional infirmities.
A brief background
A batch of petitions was filed before various high courts challenging different provisions of the various legislations like the Special Marriage Act, 1954; the Hindu Marriage Act, 1955; and the Foreign Marriage Act, 1969, to the extent that they give marriage rights to non-heterosexual couples but failed to recognise non-heterosexual marriages.
In a petition before the Delhi High Court, the government on affidavit opposed the recognition of non-heterosexual marriage.
The affidavit stated that marriage “necessarily and inevitably” presupposes a union between two persons of the opposite sex.
Some petitions were also filed before the Supreme Court. The Supreme Court had issued notices in petitions filed by a gay couple (Sameer Samudra and Amit Gokhale) seeking recognition of their foreign marriage. Another petition was on the recognition of marriage under the Special Marriage Act (Supriyo@Supriya).
The Supreme Court took cognisance of the various petitions filed in different high courts and transferred all of them to itself.
Meanwhile, support and opposition to the Supreme Court hearing these petitions poured in. A group of 21 former high court judges released a public statement addressed to the CJI.
The statement opposed the hearings on the grounds that recognition of non-heterosexual marriage would go against the “Bharatiya marriage traditions”.
The opinions were not just limited to marriage equality. They touched upon issues of adoption and surrogacy by non-heterosexual couples as well.
While the Delhi Commission for Protection of Child Rights supported the adoption of non-heterosexual couples, the National Commission for the Protection of Child Rights filed an intervention application opposing the move.
A day before the hearings began, the government filed preliminary objections reiterating its earlier stand. The objections stated that the recognition of non-heterosexual marriage is an “urban-elitist” concept.
Currently, while adoption laws only recognise traditional marriages, the Surrogacy (Regulation) Act, 2021 also excludes non-heterosexual couples from opting for surrogacy.
A day before the hearings began, the government filed preliminary objections reiterating its earlier stand. The objections stated that the recognition of non-heterosexual marriage is an “urban-elitist” concept.
It also stated that the recognition of marriage equality through a judicial pronouncement will make many legislations redundant.
What transpired during the hearings?
The hearings went on for 10 days. A brief account of the same by The Leaflet can be accessed here.
During the hearing, the petitioners pleaded that the Supreme Court’s Navtej Singh Johar removed a stumbling block which criminalised the existence of homosexual persons.
The next step requires affirmative action by recognising that non-heterosexual couples are at par with others in the society.
The petitioners argued that the government has failed to take any affirmative action to protect the rights of non-heterosexual couples. They gave the example of the Transgender Persons (Protection of Rights) Act, which was only enacted in 2019, five years after the Supreme Court gave legal recognition to the third gender.
The court responded to this argument and stated that by decriminalising homosexuality, it contemplated non-heterosexual couples to be in a marriage-like stable relationship.
However, the CJI announced that the Bench will adopt an incremental approach and limit the hearing to whether the Special Marriage Act could accommodate gender-neutral language such as ‘person’ instead of using ‘husband’ or ‘wife’.
To this, the petitioners had pleaded that limiting the declaration sought from the court must not exclude consequential benefits that arise out of the institution of marriage.
The right to marry is a bouquet of rights, the petitioners pleaded.
Some of the petitioners also pleaded for the statutory recognition of non-heterosexual unions. One of the petitioners termed it within the “intimate association” concept protected under Article 19 of the Constitution.
The CJI announced that the Bench will adopt an incremental approach and limit the hearing to whether the Special Marriage Act could accommodate gender-neutral language such as ‘person’ instead of using ‘husband’ or ‘wife’.
The government opposed all the arguments and responded that its legislative intent was clear. The respondent cited the example of the Transgender Persons (Protection of Rights) Act, 2019, and stated that it had the opportunity to recognise non-heterosexual marriages under the legislation but it did not intentionally do so.
The respondent also argued that the right to cohabit is a fundamental right. However, to seek recognition that at par with the institution of marriage is not legally permitted and the State cannot be compelled to change the definition of marriage.
The respondents took a stand that no gap exists in the Special Marriage Act whereby gender-neutral terminology could be accommodated. They asserted that the Act continues to be workable.
The court responded that constitutional values protect the core element of marriage.
Some of the petitioners also pleaded for the statutory recognition of non-heterosexual unions. One of the petitioners termed it within the “intimate association” concept protected under Article 19 of the Constitution.
The fight for equality for gender and sexual minorities in India has been a long and arduous one, with many ups and downs. Today’s judgment, which reads more like an academic paper— a polemic one at that— may swing towards being a low point, but it will not stop the long march to rainbow justice.
