With the recent initiative of online streaming of Supreme Court (as well as several high court) proceedings, there is an increased awareness about how courts function. There is a great deal of understanding among laypersons (such as myself) about how constitutional benches function, how arguments are presented, how rebuttals are proposed, and how judicial activism/interventions are done.
Notwithstanding that, one of the recent constitutional bench proceedings I keenly observed was a case about “marriage equality”, where the petitioners had presented the prayer that the “right to marriage” be treated as a fundamental right in the Indian constitution, and special marriages act be “read-in” to allow for broader partnerships and associations between two consenting individuals.
Despite my very little judicial knowledge, and due to my once-keenness to pursue law (like every other thing on the earth I wanted to do), I took a particular interest in the arguments presented by the petitioners, respondents, and questions posed by the judges.
What were the prayers of the petitioners in the same sex marriage case?
The petitioners present two-fold questions to the constitutional bench: (a) the status of the right to marry for LGBTQ+ couples, and (b), depending on its response, the remedy that must ensue. The petitioners argue that they not only have the right to marry but also that the court must “read into” legislative frameworks that already government marriages, such as Special Marriages Act (SMA) and Foreign Marriages Act (FMA). This, they argue, would entail a positive obligation on the state to not only not discriminate (in terms of adoption, property laws, and joint bank accounts) but also enforce a certain understanding that empowers queer couples.
What was the gist of marriage equality judgement?
In the recent judgement on marriage equality, a five-judge Bench of the Supreme Court (consisting of Chief Justice D.Y. Chandrachud, Justice S.K. Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha) has announced a 3:2 verdict, declining the legalisation of same sex marriage. And it has placed it upon the Parliament and the state legislatures to decide on legal recognition of queer unions. The judgement reads over 366 pages, documenting the levels of agreements between the learned judges and points of disjuncture. Personally, the judgement has disappointed me—for the reasons I will mention later.
There are two important pointers in the marriage equality judgment.
First, all the learned judges agree that the “right to marry” as a fundamental right is obviously a loose reading of the Constitution. While there is no right to marry in the constitution, let alone its association with the fundamental right, there are definitely laws governing marriage specified in various law-binding like personal, special marriage and other laws. Moreover, a broader reading of the special marriage act (and a provisional “reading-in” to accommodate queer partnerships) would invariably allow one to enter into a territory of law-making (with all its complexities), which is better left for parliaments to deal with.
Second, while all judges agree that it is up to the legislature to intervene and reflect on the lives (and help improve the conditions), and make laws for LGBTQIA+ couples, there was a stark difference in how the majority judgement treated marriage as a sacrosanct entity, whose origin predates constitutional state and its institutions, and whose sanctity must be upheld in society.
In the next section, I hope to present a broad set of arguments proposed by learned judges in four separate judgements. The disagreements between judges were centred around the separation of power doctrine, which restricts the role of the judiciary in pushing forth legislative reforms. The majority opinion, which disposed off the petition, was held by Justices Ravindra Bhat, Hima Kohli, and P.S. Narasimha, and the Chief Justice and Justice S.K. Kaul presented the minority opinions.
Chief Justice D.Y. Chandrachud
In the opinion of Chief Justice D.Y. Chandrachud, there is no universal definition of marriage. Marriage is a union between two consenting individuals. “A marriage is valid in the eyes of the law as long as the preconditions in the concerned law(s) are satisfied. A precondition is different from a feature or characteristic; the former is a prerequisite to a valid marriage, whereas the latter is not. The law provides which either party may avail of in the presence or absence of certain features or characteristics.” He further adds: “Once a couple marries, it is left to them to give meaning and content to their relationship.” This individual conception of marriage is interesting precisely because it allows for a broader reading of marriage. Now he adds, “the queer community is just as much a community as any other, though perhaps not in the traditional sense in which the term is used concerning customs which govern marriage.”
Furthermore, the mere act of procreation should not be a binding characteristic of a marriage. In several heterosexual marriages, the partners choose not to procreate and are not able to procreate. Moreover, marriage has never been a static institution. Its form and content are bound to change based on socio-political transformations. In India, per se, we have a long history of banning practices such as sati and child marriages, and at the same time, positive propositions of pushing forth widow remarriages.
Moreover, the state’s role in the interventions in marriage has been regulatory. C.J. Chandrachud adds:
The state: firstly, prescribes conditions with respect to who can enter into a valid marriage; secondly, regulates the marital relationship during its sustenance; and thirdly, regulates the repercussions of the breakdown of the relationship of marriage…There are two prominent reasons [for the state regulation of marriage]. The first reason was to regulate the social order. The state regulated social order by firstly, regulating the sexual conduct of persons through marriage, and secondly, by prescribing a legal mechanism for the devolution of property based on the legitimacy of their heir… The state regulates marriage to create a space of equal living where neither caste, religion, and sex prevent any person from forming bonds for eternity nor do they contribute to the creation of an unequal relationship.
(p. 125)
In his discussion on why marriage is not a fundamental right, the Chief Justice adds that marriage, per se, is not so crucial that it be made a fundamental right. He writes: “The State through the instrument of law characterises marriage with two constituent elements: the expressive and material components. Marriage may not have attained its social and legal significance 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” (p. 139). He further notes that Article 15 must be read broadly to indicate that “sex” must take into account the “sexual orientation”. The term “sex” itself is independent of the social and historical context. Still, when the two contexts are added, sex becomes an important marker of how the term itself can be seen as evolutionary (p. 182).
Justice Sanjay Kishan Kaul
In the minority opinion of Justice Sanjay Kishan Kaul, the right against discrimination due to sexual orientation is necessary. And in his learned opinion, it should be intersectional in nature. At the same time, he notes that marriage is not a fundamental right. He adds:
“Legal recognition of non-heterosexual unions represents a step forward towards marriage equality. At the same time, marriage is not an end in itself. Our Constitution contemplates a holistic understanding of equality, which applies to all spheres of life. The practice of equality necessitates acceptance and protection of individual choices. The capacity of non-heterosexual couples for love, commitment and responsibility is no less worthy of regard than heterosexual couples. Let us preserve this autonomy so long as it does not infringe on the rights of others. After all, ‘it’s my life.’”
While these opinions may seem to be progressive, however, they are minority opinions. The majority opinion, in this case, upholds marriage as a social institution whose sanctity sustains the heterosexual union. And it is here my major reservations emerge.
Justice S. Ravindra Bhatt
In the majority opinion penned by Justice Bhatt, “marriage, as a social institution, predates all rights, forms of political thought and laws.” Marriage has, for a long time, according to the learned judge, a “relationship of man to woman which is recognized by custom, and thereafter law.” Bhatt holds that the respondents are correct in underlining that what constitutes marriage has been historically “understood marriage as between heterosexual couples”. He further adds:
The greater part of history shows that the choice of a spouse, based on love or choice, played almost no role at all. Enlightenment and Western thinkers of the eighteenth century established that pursuit of happiness was important to life. They advocated marrying for love, instead of status, or wealth or other considerations. The Industrial Revolution gave impetus to this thought. Marriages were solemnized and celebrated with increasing frequency, in Western cultures, based on choice, voluntary consent, and without parental approval. This movement increased tremendously – as women’s-rights movement expanded and gained impetus in the nineteenth and twentieth centuries, wives started being regarded as their husbands’ equals, not their property. Couples were also enabled to choose whether to have, and if so, how many children to have. If they were unhappy with each other, they could divorce – a choice exercised by a large number of couples. Marriage became primarily a personal contract between two equals seeking love, stability, and happiness. Therefore, although social mores prevailed in relation to marriage, traditions and legal regimes were not static; the changes that society underwent or the forces that brought change, also carried winds that breathed new content, new contexts and new values, into the institution of marriage.
According to Justice Bhatt, parliament has intervened as and when it deemed necessary to enact and codify laws around customary practices. And therefore, unlike learned CJ Chandrachud’s opinion, the majority opinion does not subscribe to characterising what is deemed as “democratizing intimate zones”. Furthermore, it is in the interest of the state to intervene and regulate such relationships. The demand for the right to access a marriage-like institution, a publicly created and administered institution, requires state action.
While we agree that there is a right – which we will characterise as a ‘right to relationship’ to avoid confusion – we squarely recognise it to fall within Article 21, as already recognised in the afore-cited cases. The right to relationship here, includes the right to choose a partner, cohabit and enjoy physical intimacy with them, to live the way they wish to, and other rights that flow from the right to privacy, autonomy and dignity. They are, like all citizens, entitled to live freely, and express this choice, undisturbed in society. Whenever their right to enjoyment of such relationship is under threat of violence, the state is bound to extend necessary protection.
Justice Bhatt asks: “If it is agreed that marriage is a social institution with which the State is unconcerned except the limited state interest in regulating some aspects of it, does it follow that any section of the society (leaving aside the issue of rights of non-heterosexual couples) – which wishes for creation of a like social institution, or even an entry into a zone which is not popular or otherwise does not fall within the institution of marriage – can seek relief of its creation by court intervention?”
In his discussion of Article 21, Justice Bhatt closely examines “unenumerated rights”—the right to clean environment, the right to shelter, etc.—the courts have been circumspect in how these can be enforced. In his illustration, he considers a poet who wishes to share their work to a larger audience. However, the state’s enabling or facilitating role in his freedom to share is limited. Moreso, the state cannot, then ask the state to create a platform for the poet to perform. And that would be a stretch of the rights.
However, the Chief Justice has a rebuttal to this argument:
The opinion of my learned brother fails to have noted the judgment of a three-judge Bench of this Court in State of Himachal Pradesh v. Umed Ram Sharma. In this case, a letter petition was written to the High Court claiming that the construction of a road which would benefit the residents of the village and in particular, the members of the Dalit community was stopped by the State. The High Court directed the Superintending Engineer of the Public Works Department to complete the construction of the road. This Court dismissed the appeal against the judgment of the High Court observing that the Constitution places a duty on the State to provide roads for residents of hilly areas because access to roads is encompassed in their right to secure a quality life.
The Chief Justice further adds that, although Justice Bhat discusses in details deprivations of the queer community, however, “he does not take the step which logically follows from such a ruling which is to pass directions to obviate such discrimination and ensure the realization of the rights of the queer community.” He further adds: “The principle of ubi jus ibi remedium (that is, an infringement of a right has a remedy), which has been applied in the context of civil law for centuries cannot be ignored in the constitutional context. Absent the grant of remedies, the formulation of doctrines is no more than judicial platitude.”
Justice Hima Kohli
[In agreement with the majority opinion penned by Justice Bhatt.]
Justice P. Narasimha
While Justice Narasimha broadly agrees with the majority opinion authored by Justice Bhatt. He further pushes forth the notion that marriage is a sanctimonious activity. He notes that the constitution specifically allows customary practices—like marriages—to stay in tandem with other laws. He also disagrees with the learned Chief Justice that marriage has attained significance because of its benefits.
Instead, pointing to the Mohammedan law of marriage, the learned judge adds that there has been barely any state intervention in the institution of marriage. He also does not very much in agreement in most of what the Chief Justice has to say about marriage. He disagrees that marriage is merely instituted for tangible and intangible benefits. For him, marriage is a sacrosanct customary practice.
While the pointers presented in this essay are non-exhaustive and non-exclusive, they are representational – and are deemed to read a means to understand how marriage equality was deliberated in the judgement.
The Way Forward for Marriage Equality in India
In all, the 3-2 verdict refused to accord legal recognition to same sex marriages. The court also refused to recognise the right to marry as a fundamental right while also refusing to read words into the SMA provisions to make it gender-neutral. But what is the way forward, one may ask? Although I was certain that the right to marriage as a fundamental right would be an overstretch of the constitution, I am particularly disappointed with the majority reading of marriage—and the sanctimonious “hetero” it seeks to hold. Such a reading, however understandable, is conservative.
Apart from this, it is also interesting how judicial activism as a tool of the judiciary’s overreach in legislative practices has been selectively used. In this case, in my limited understanding, there was definitely scope for the judiciary to take a step further and push forth several changes in allowing queer couples recognition in law. Despite each of the learned judges documenting and pointing out that queer community is one of those which are oppressed and stigmatised in society, they steer clear of pushing forth active reforms in allowing queer couples to adopt children and live a recognised life in society.
Today, societies and communities have sought to re-read the institutions of marriage as they exist today, and as a result, their interpretations are undergoing constant change, iterations, and interpretations. And the learned judges need to be a little more sensitive and mindful to these social changes. However dull may the judgement be, it is also interesting in terms of how it has allowed spaces for different interpretations of marriage—and that is where the space for queer communities to engage persists.
For instance, the learned Chief Justice seeks to propose a reading of the notion of “union” as a kind of partnership between two consenting individuals, which needs to be recognised in the law. This, for me, seems interesting proposition. If one were to think of marriage as a form of civil union/partnership, then civil union takes precedence. Marriage, as a social institution based on socio-cultural understanding, remains one kind of such relationship or civil union. At the same time, it also legally recognises all kinds of relationships.
This understanding does not harm the notional sanctity ascribed to marriage being the union between heterosexual individuals. Effectively, it provincializes marriage as a form of union and not the only form of union. At the same time, it proposes to treat marriage as one of many forms of civil unions/partnerships. All forms of civil unions (including marriages, unions between non-heterosexual individuals, and those choosing to live in relationships) are governed under the ambit of law—protected and non-discriminated. This reading, for me, is revolutionary.
There were also, in the minority reading of judgement, hints at discussing “sex” in terms of sexual orientation. Suppose the later judges and legal practitioners pick these concepts, develop them further, and push forth a new reading of the Constitution. In that case, there is greater scope for the LGBTQ+ community to lead a better life in society. There is a lot that needs to be done—and there is a lot that is at stake for the queer community in particular and the society in general.
References:
- For India’s Supreme Court judgement on marriage equality, see: https://main.sci.gov.in/supremecourt/2022/36593/36593_2022_1_1501_47792_Judgement_17-Oct-2023.pdf
Cover Photo: Chinchu.C, CC BY-SA 4.0, via Wikimedia Commons