The Chief Justice of India Dr D.Y. Chandrachud wrote one of the four separate opinions on what was expected to be the next big milestone for equal rights for gender and sexual minorities in India, but has turned out to be a bureaucratic, academic damper.
THE judgment in a batch of petitions demanding marriage equality for non-heterosexual couples was pronounced today.
The Constitution Bench of five-judges headed by the Chief Justice of India (CJI) Dr. D.Y. Chandrachud and also comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha decided in the matter ofSupriyo@Supriya Chakraborty versus Union of India and wrote four separate opinions.
The CJI read excerpts from his opinion. He waxed eloquent about queerness being indigenous and having a long history in the sub-continent, and asserted that non-heterosexual couples must be treated on par with heterosexual couples, but ultimately refused to strike down theSpecial Marriage Act, 1954as being ultra vires of the Constitution for not affording equality to non-heterosexual couples, or expanding its scope to non-heterosexual couples.
The CJI also recognised the freedom to form intimate associations under Article 19(1)(e) of the Indian Constitution. But he added that it is not necessary that such relationships must be granted all rights at par with marriage.
Some of the parts of the judgments he read are mentioned below.
Separation of powers and the exercise of judicial review
He first addressed the contention of the Union government that the Supreme Court was not the proper forum to delve into the question of marriage and the rights it entails. The Solicitor General of India Tushar Mehta had argued onDay 1 of the hearings that the Parliament and not the Supreme Court was the appropriate forum to create a new socio-legal institution of marriage.
The CJI has rejected this contention and stated that the doctrine of separation of powers as traditionally understood means that each of the three organs of the State performs a distinct function and distinct sphere. No branch performs the function of any other branch.
The traditional understanding of this doctrine, the CJI explained further, also termed ‘pure doctrine’, does not animate the functioning of most modern democracies.
“Our Constitution does not reflect a rigid understanding of this doctrine that has long been acknowledged by the Supreme Court. A functional and nuanced version of this doctrine, where the essential function of one arm of the State is not taken over by another arm and institutional comity guides the action of each arm is practised,” the CJI averred.
In other words, the functional understanding of the separation of powers demands that no arm of the State gains supremacy over another, he asserted.
He added, “The Union of India suggested that this court would be violating the doctrine of separation of powers if it determines this case. Separation of powers undoubtedly forms the basic structure of the Constitution. But equally, the power of the courts to conduct judicial review is part of the basic structure of the Constitution.”
The doctrine of separation of powers certainly does not operate as a bar against judicial review. In fact, judicial review promotes the separation of powers by seeing to it that no organ acts in excess to its constitutional mandate. It ensures that each organ acts within the bounds of its remit, the CJI continued.
“Further, as discussed in the previous segment of this judgment, the Constitution demands that this court conduct judicial review and enforce the fundamental rights of the people. The framers of our Constitution were no doubt conscious of this doctrine when they provided for the power of judicial review. Being aware of its existence and what it postulates, they choose to adoptArticle 32 which vests this court with broad powers,” he stated.
The doctrine of separation of powers cannot, therefore, stand in the way of this court issuing directions, Orders, or writs for the enforcement of fundamental rights. The directions, Orders or writs issued for this purpose cannot encroach upon the domain of the legislature, he continued.
He concluded the section with the observation, “This court cannot make law, it can only interpret it and give effect to it.”
Queerness is not urban elite
The second except the CJI read was referred to as “Queerness is not urban elite”.
A day before the hearings had begun, the Union government (respondent) had filedpreliminary objections reiterating its earlier stand of opposition to the pleas. The objections stated that the recognition of non-heterosexual marriage is an “urban-elitist” concept.
The discussion on this segment has not scratched the surface of the rich history of the lives of LGBTQI persons in India, which continues in the present, the CJI observed.
“Yet, even the limited exploration of the literature and reportage in 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 asserted.
The discussion in the preceding paragraphs reveals the diversity of the queer population. People may be queer regardless of whether they are from villages, small towns, or semi-urban or urban spaces, he continued.
“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 can lay claim to being queer. Also, and equally, the woman who works on a farm in an agricultural community,” he remarked.
The CJI continued, “Such persons may or may not identify with the labels of queer, gay, lesbian, and trans etc., either because they speak a language which is not English or for other reasons. But the fact remains that many Indians are gender-queer or enter into relationships with others of the same sex.”
During the hearings, Senior advocates K.V. Viswanathan and Jayna Kothari, also representing the petitioners, shared the experience of their clients against the allegation of non-heterosexuality being ‘urban elitist’.
Viswanathan said, “My client was forced to go to the streets. Zainab Patel, a transgender, disowned by the family. Begged on the streets, came up on her own and today she is, My Lords, Director in KPMG all by herself. [For non-hetero-sexuality] to be branded as urban elitist shows absolute lack of grace. The Union should have shown a little more grace on her account… Today she is a member of the Transgender Council nominated by the Government under the [Transgender Persons (Protection of Rights) Act, 2019].”
Joining the debate, Kothari shared, “[My client] Akkai Padmashali … is a well-known trans activist. At the age of 15, she was thrown out of her house. She had to drop out of school. She was on the street. And thereafter, My Lords, she has come back to the mainstream. This is a life they have to live. To say that they are elitists… These are totally poor, working-class backgrounds.”
In the words of a person assigned female at birth and who worked in a factory in Ajmer, to imagine a queer person existing only in urban and affluent spaces is to erase them, even as they exist in other parts of the country, the CJI added, scaffolding the argument of the petitioners.
“It would also be a mistake to conflate the urban with the elite. This renders invisible larger segments of the population who lives in urban spaces, but are poor or otherwise marginalised. Urban centres are themselves geographically and socially divided along the lines of class, religion, and caste. And not all those who live in cities can be termed elite merely by virtue of their residence in cities,” the CJI asserted.
“This walk on history is not an attempt by this court to take the mantle of historians. The discussion demonstrates that the institution of marriage does not remain static or stagnant. On the contrary, it is the change which characterises the institution,” the CJI averred.
Institution of marriage is not static or stagnant
“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,” the CJI continued.
Despite vehement opposition to any departure from practice, the institution of marriage has changed. This is an incontrovertible truth, he asserted.
On March 31, a group of 21 former high court judges had released a public statement addressed to the CJI. The statement had opposed the hearings on the grounds that recognition of non-heterosexual marriage would go against the “Bharatiya marriage traditions”.
Here, it is also important to take note of the fact that these changes were brought about largely by the acts of the Parliament and legislature of the states, he noted.
He added, “While the passage of many laws were preceded by significant social activism, it was the legislature which ultimately responded to the call for change. Even the Parliament, and in some cases, the courts, expand the liberties of the people to conduct their lives in a manner they see fit in accordance with law.”
Many sections of the society remain opposed to these changes. Regardless of such opposition, the institution of marriage has undergone a sea change. It is, therefore, incorrect to characterise marriage as a static, stagnant, or unchanging institution, the CJI asserted.
Obligation of positive affirmation on State to safeguard fundamental rights
The CJI has held that the right to enter into a union includes the right to associate with a partner of one’s choice.
The CJI stated that the court must accord recognition to such relationships.
Fundamental rights are not merely a restraint on the power of the State. They are provisions that would promote and safeguard the interests of the citizens. They require the State to restrain its exercise of powers and create conducive conditions for the exercise of rights, the CJI averred.
During the hearings, while petitioners argued that marriage is a fundamental right that comes out from the reading on the fundamental right to equality, the respondents contended that while the right to cohabit is a fundamental right, it held that the State cannot be compelled to recognise an institution which it does not want to recognise.
If such a positive obligation is not read into the State’s power, then the rights which are guaranteed by the Constitution would become a dead letter. This is because the question of whether the State is curtailing the rights of citizens would only arise when the citizens have the capacity and capability to exercise such rights in the first place.
The withdrawal of the State from the domestic space leaves the disadvantaged party unprotected, since classifying certain actions as private has different connotations for those with or without power, the CJI averred.
In case of personal relationships which are characterised by inequality, the actions of the more powerful person gains immunity from the scrutiny and the degree of legitimacy, he continued.
“Thus, all activities in the private space dealing with intimate choices must not readily and blindly be categorised to be beyond the scope of State’s regulation,” he remarked.
Some of the petitioners, while pleading for the statutory recognition of non-heterosexual unions, had termed it within the “intimate association” concept protected underArticle 19 of the Constitution.
The State must assess if its interest in democratising private space overrides the interest of privacy in a given situation, the CJI asserted.
In pursuance of the power conferred under Articles245 and246, read with Entry V of the Concurrent List, the Parliament has enacted laws creating and regulating socio-legal institution of marriage, he observed.
State legislatures have made amendments to such laws with the assent of the President since the subject of marriage is in the Concurrent List, he remarked.
Right to marry
On the point of recognise the right to marry as a fundamental right, the CJI said: “As explained above, this would mean that if the Parliament or the state legislature have not created an institution of marriage in exercise of their powers in Entry V of the Concurrent List, they would be obligated to create an institution because of the positive postulate encompassed in the right to marry.”
The CJI continued: “This argument cannot be accepted. As explained in the previous section, the state through the instrument of law characterises marriage with two constituent elements. The expressive and the material components.”
Marriage may not have attained the social and legal significance it currently has if the State had not regulated it through law. Thus, while marriage is not fundamental in itself, it may have attained significance because of the benefits which are realised through regulation, he averred.
OnDay 8 of the hearings, Chief Justice of India Dr D.Y. Chandrachud: “To say that there is no fundamental right to marry would be far-fetched… What are the core constituents of marriage? If you look at each of the constituent elements, each of them is protected by constitutional values.”
If the court finds that a provision is contrary to Part III of the Constitution, it shall declare it as void or read it down by deleting phrases or read words in by adding or substituting phrases to save it from being declared void, he continued.
If in the present batch of petitions, this court holds that Section 4 of the Special Marriage Act is unconstitutional, because it is under-inclusive to the extent that it excludes by implication marriage between same-sex couples, the court would either strike down Section 4 of the Special Marriage Act or follow the workability model submitted by the petitioners, the CJI observed.
“If the court follows the first approach, the purpose of progressive legislation such as the Special Marriage Act would be lost. The Special Marriage Act was enacted to enable persons of different religions and castes to marry,” the CJI added.
This conclusion differs from his previous assertion about the evolution of marriage through stages, which included prohibition of sati, recognition of inter-caste marriage and a general expansion of rights.
“If the Special Marriage Act is held void for excluding same-sex couples, it would take India back to the pre-Independence era where two persons of different religious and caste were unable to love in the form of marriage,” he continued.
Such a judicial verdict would not only have the effect of taking the nation back to the era when it was closed in social inequality but also religious intolerance. But, the CJI added that it would push the court between eradicating one form of discrimination and prejudice at the cost of permitting another.