The recent marriage equality judgment, sweeping off the right to marry from the table of constitutionalism, has cleared the way for State interference in individual liberties in many other ways.
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THE Supreme Court of India’s long-awaited decision in the marriage equality case has cast a shadow of disillusionment and discontent.
While the Chief Justice of India (CJI) Dr D.Y. Chandrachud and Justice Sanjay Kishan Kaul advocated for civil unions as a means of granting non-heterosexual couples legal rights and protections akin to marriage, the majority contended that only an elected legislature possesses the authority to effect such changes.
It is essential to note the unanimous stance of all five judges, categorically denying the existence of a fundamental right to marry to all citizens, queer and otherwise.
More egregious still is the realisation that despite the court’s acknowledgement of the glaring discriminatory impact wrought by the denial of marital rights to queer individuals, they conspicuously shirked their duty to forge a remedy, leaving us at the mercy of a legislature that is apathetic at best.
It is essential to note the unanimous stance of all five judges, categorically denying the existence of a fundamental right to marry to all citizens, queer and otherwise.
However, the significance of this finding goes beyond the question of marriage equality for queer people, potentially imposing limitations on every citizen’s freedom to choose their life partner.
Denial of the right to marry
As the CJI rightfully notes, in Shafin Jahan versus Ashokan K.M., the Supreme Court precluded State encroachment into an individual’s choice of partner under the framework of Article 21 in the context of inter-faith marriages.
Also read: Marriage equality judgment: An explainer
Similarly, in Shakti Vahini versus Union of India, the Supreme Court espoused the choice of a partner using the language of dignity, finding a ‘right’ of two consenting adults to marry out of their own volition, without interference from the State or non-State entities (such as khap panchayats).
Several other cases, such as Lata Singh versus State of Uttar Pradesh and Arumugam Servai versus State of Tamil Nadu also subscribed to this line of thinking against the backdrop of honour killings and inter-caste marriages.
In all these cases, the Supreme Court made progress towards constitutional entrenchment of an individual’s freedom of choosing a partner. In the backdrop of these protections, the denial of marriage equality is particularly bewildering.
However, the CJI and Justice Ravindra Bhat distinguish the protections recognised in these cases from those sought in Supriyo@Supriya Chakraborty versus Union of India. The CJI observes that both these cases dealt with circumstances where a couple, otherwise entitled to marry, was prevented from doing so.
As the CJI rightfully notes, in Shafin Jahan versus Ashokan K.M., the Supreme Court precluded State encroachment into an individual’s choice of partner under the framework of Article 21 in the context of inter-faith marriages.
In his opinion, the freedom to choose one’s life partner only allows individuals who otherwise meet the legal conditions for valid marriage rather than reimagining a progressive interpretation of the conditions themselves.
Justice Bhat adds to this, limiting the context in which Shafin Jahan and Shakti Vahini were decided to enforce protections in the face of “threats of violence or creation of barriers in the exercise of free choice”. He seems to assert that ‘external threat’ is necessary to compel the State to enable the exercise of free choice. Thus, the court held that neither of these cases laid down a fundamental right to marry.
In his explicit denial of the right to marry in the present case, Chief Justice Chandrachud found that a social institution could not be elevated to a fundamental right based on benefits offered by legal regulation.
However, he noted that marital relationships espouse various constitutional values, like choice and dignity. In this context, it is important to analyse his reference to Puttaswamy, where he highlights that the Constitution recognised the right to privacy through the ‘specific rights’ and ‘identity’ approach.
This acknowledgement firmly grounds the right to privacy in constitutional values such as liberty, freedom, dignity and individual self-development. Consequently, it would be logical to encompass within the sphere of privacy the right to make “vital personal choices”, including the choice of marriage.
Also read: How have the ten days of the marriage equality hearings panned out? A brief account
This perspective marked a significant step towards reading down Section 377 of the Indian Penal Code, which was finally achieved in Navtej Johar. In this subsequent case, it was affirmed that queer citizens are entitled to the full spectrum of constitutional rights, but that was not extended to marriage.
On the other hand, Justice Bhat poses two contrary ideas— he expresses that marriage is fundamentally a ‘social’ institution, with a source that is external to the State and terms set independent of State influence.
Restricting the freedom to choose one’s partner only to couples that meet existing legal thresholds for marriage arbitrarily immunises these conditions from judicial review.
In the same breath, however, he characterises the marriage equality issue as a plea for State intervention to ‘create’ an institution for marriage between queer couples.
He concludes by acknowledging that the importance of marriage hinges on the fact that it is coloured by ‘personal preference’— and that the “[i]mportance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support.”
Gaps in the court’s reasoning
A range of flaws mar the line of reasoning adopted by the court. Restricting the freedom to choose one’s partner only to couples that meet existing legal thresholds for marriage arbitrarily immunises these conditions from judicial review.
In essence, while holding the Special Marriage Act, 1954 to be non-discriminatory, the court fails to scrutinise the very provisions that have a discriminatory impact, namely, the conditions for entering into marriage.
The judgment also offers paradoxical views on State intervention. If marriage is an inherently ‘social’ institution, untouched by State involvement, then the State’s refusal to extend marriage rights to same-sex couples itself represents a significant intervention into this social institution.
This contradiction raises questions about the State’s selective involvement in shaping and regulating the institution of marriage, particularly in the context of sexual orientation.
Moreover, this reasoning also reveals a fundamental mischaracterisation of the plea for marriage equality— it is not a prayer for the creation of an institution but a demand for access to a pre-existing one. It seeks to dismantle discriminatory barriers that prevent specific individuals from participating in an institution that is already recognised and established within society. By failing to acknowledge this fundamental distinction, the court’s reasoning obscures the true nature and purpose of the challenge.
Also read: Marriage equality judgment: What did the CJI say?
Justice Bhat’s emphasis on an ‘external threat’ as a trigger to protect the liberty to choose one’s partner imposes an overly restrictive condition to recognise a right to marry. It essentially implies that unless there is a clear and immediate threat of physical harm or coercion, the State has no obligation to protect the right to marry. This stance undermines the principle of proactive protection of individual rights, as envisaged by constitutional provisions.
The conditioning of the right to marry poses not only a risk to the autonomy of individuals but also to the broader principles of non-discrimination and equal rights within the institution of marriage.
Furthermore, his narrow conceptualisation of the ‘external threat’ leads to selective protections under Part III of the Constitution. It suggests that the State should only intervene to enable free choice in the face of external threats, thereby neglecting systemic discrimination and social prejudices that queer individuals face.
Based on the examples he selects, the notion of a ‘threat’ conceptualised by Justice Bhat appears to be limited to purely physical dangers. Not only is it incorrect to disregard physical risks faced by queer unions and relationships, but this restricted conceptualisation of ‘threat’ also reflects a myopic understanding of social realities.
The absence of comprehensive security, encompassing physical, legal and financial aspects, with which queer individuals are burdened should be recognised as a substantial threat warranting the establishment of a concomitant protective right.
The ‘threat’ as delineated here appears to be intentionally selective in its definition, thus failing to address the broader and more prevalent forms of discrimination and barriers encountered by LGBTQ+ individuals in their pursuit of marriage equality.
We contend that if the precondition for the very existence of a constitutional right is contingent upon the presence of a threat, then such perils must undergo a rigorous and comprehensive definition. It would call for an ‘inclusive concept of endangerment’ that would account for all ‘hazards to equality’ that queer individuals encounter.
Right to marry: Not just a queer issue
The impact of the court’s unanimous findings on the right to marry goes beyond the question of marriage equality for queer individuals. It necessitates a reflection on the protections hitherto accorded to the institution of marriage itself.
Also read: Marriage equality judgment: What did the puisne judges say?
We believe that the existing constitutional values espoused within heterosexual marital relationships, as recognised by the CJI, could also potentially be at risk. Predicating the right to marry on the existence of an external threat imposes an arbitrary restriction and introduces an unsettling possibility of future restrictions on existing protections for heterosexual marriages.
The verdict suggests that the State may have a legitimate role in intruding into private matters, such as the choice to marry, based on external considerations.
If the right to marry is contingent upon specific conditions, it sets a precedent that could be used to justify additional restrictions or limitations on who can enter into a marital union.
This, in turn, could empower the State to determine, under certain circumstances, which individuals are entitled to marry and immunise such restrictions from judicial review.
For instance, if we were to extrapolate the court’s reasoning, it suggests that the protection of individual autonomy in choosing a life partner— as laid down in the cases of Shakti Vahini and Shafin Jahan— finds its basis in the existing legal provisions that permit inter-caste and inter-faith marriages.
Consequently, following the court’s line of argument, if there were to be restrictions placed on such marriages through future legislative actions or repeals of existing laws, they would be beyond reproach.
Such interventions would not only defeat the modern role of marriage as a freely chosen union of consenting adults but also erode personal autonomy and the constitutional values enshrined within the context of marriage.
Therefore, the conditioning of the right to marry poses not only a risk to the autonomy of individuals but also to the broader principles of non-discrimination and equal rights within the institution of marriage.
This is best exemplified by the host of challenges to anti-conversion laws enacted by state governments currently pending before a three-judge Bench of the Supreme Court.
Many of these laws or ordinances include controversial provisions on marriage, leading them to be dubbed “love jihad” laws. At least twelve states have imposed criminal penalties on unlawful conversions and impose additional penalties for conversions occurring in the context of interfaith marriages.
“Love jihad” is a pejorative term used to characterise marriages between Hindu women and Muslim men, wherein the former converts to Islam after marriage, presumably by force or deceit. The Hindu woman is paternalistically idealised as a commodity belonging to the religious community (lacking any agency) that must be protected from the danger of conversions.
Also read: Marriage equality judgment: A Suresh Koushal moment for gender and sexual minorities in India
Moreover, by imposing notification requirements on individuals intending to convert and inverting the burden of proof onto individuals accused of violating these laws, these laws undermine autonomy and are rife with political agendas.
The constitutional validity of these laws is currently under consideration before the Supreme Court. While this is not the first time the court has considered the validity of anti-conversion laws, the developments discussed above in constitutional jurisprudence around personal autonomy and marriage in the last decade are poised to form the bulwark of the petitioner’s case.
Puttaswamy alone, which recognised the protection of personal choices within the right to privacy, is a significant development that directly conflicts with ‘love jihad’ laws.
Recognition of personal rights, including the right to marry, becomes contingent upon aligning with external criteria that satisfy the State’s interests.
The verdict in the marriage equality case, which declines to recognise the right to marry as emanating from the principles established in Puttaswamy, may influence the outcome of these challenges.
The CJI and Justice Bhat’s reasoning behind not elevating the right to marry as a fundamental right, to an extent, acquiesces and tacitly accepts State interest in making inroads into individual liberties. This perspective effectively opens the door to State intervention into the realm of personal choices, particularly in the context of marriage.
A critical aspect of this approach is the reliance on the ‘external manifestation’ of privacy. The court seems to evaluate the extent to which individual rights and liberties are subject to State oversight regarding the outward expression of privacy rather than enabling autonomy within the private sphere of decisions.
Also read: Unravelling the marriage equality judgment
The verdict suggests that the State may have a legitimate role in intruding into private matters, such as the choice to marry, based on external considerations.
Without further analysis, it appears that the anti-conversion marriage laws could withstand the kind of scrutiny found in this case.
This approach grants the State a broader scope for intervention, which could have far-reaching implications for various aspects of personal freedom and individual autonomy.
The consequence of this perspective is that the recognition of personal rights, including the right to marry, becomes contingent upon aligning with external criteria that satisfy the State’s interests.
In conclusion, the decision to withhold the recognition of a fundamental right to marry and to deny marriage equality holds the potential for far-reaching and cascading influence on the intricate relationship between constitutional values and the institution of marriage.
