Category: LGBTQIA+

Last month, the Supreme Court delivered its judgment in Supriyo @ Supriya Chakraborty v. Union of India. The court’s refusal to recognise same-sex marriage, I have argued here, is best understood as the justification of institutional abstention through delegitimising the petitioners’ case. This delegitimisation, I have argued, occurred through three means: the denial of the existence of a constitutional right to marry; a misidentification of the classification’s subject-matter; and the creation of artificial barriers in the court’s ability to transform social structures. I have covered the first of these means – the denial of the right to marry – in my previous post. The third means, which concerned the creation of artificial barriers to the court’s power to remedy rights violations, has been discussed by Hardik Choubey here.

In this piece, I examine the second mode through which the court justified its institutional abstention, which concerned its response to the petitioners’ claims under Article 14. While the petitioners proposed that the Special Marriage Act, 1954’s (“SMA”) heteronormative conceptualisation of marriage caused the exclusion of persons who could not – due to ascriptive factors or otherwise – enter into such marriages and enjoy the bundle of rights they confer, the court rejected this claim at its very inception. It held that there was, in fact, no exclusion of non-heterosexual forms of marriage caused by the SMA because Parliament – let alone consciously excluding such marriage – was not even aware of its possible existence at the time of SMA’s enactment.

This approach towards identifying exclusion that prizes an “intent to exclude” over factual, verifiable exclusion, I propose, is a novel and dangerous development in constitutional doctrine, and was designedly deployed to delegitimise the petitioners’ Article 14 challenge. Further, I propose that Bhat, J., in his Article 14 enquiry, commits a major misidentification of the classes the SMA creates, and creates diversions to circumvent a response to the SMA’s exclusion of non-heterosexual marriage. I make this argument in the following manner – first, I discuss the court’s Article 14 enquiry into the SMA and interrogate its major propositions; second, I propose that the court invents a novel standard of “intent to classify” to determine a differentia under Article 14, a dangerous development that risks a permanent entrenchment of regressive parliamentary actions based on a Court’s assessment of Parliament’s epistemic limitations at the moment of enactment; and third, I propose that the court substantially errs in identifying the classes the SMA creates, and circumvents a response to whether the SMA’s objective of regulating exclusively heterosexual marriage continues to remain legitimate.

Manipulating classifications: The court’s treatment of equality and non-discrimination

In impugning SMA’s Section 4, the petitioners made a very straightforward argument: it provides a set of conjunctive conditions to be fulfilled by a couple seeking a marriage, with sub-section (c) mandating the existence of a “male” and a “female”. This heteronormative prescription for marriage constitutes discrimination based on persons’ sexual orientation. Sexual orientation is an ascriptive characteristic protected by Article 15(1) of the Constitution, as interpreted by Chandrachud, J. (as he then was) in Navtej Johar v. Union of India. Without prejudice to the challenge based on Article 15(1), the impugned section also creates a classification between heterosexual and non-heterosexual couples for availing marriage, with such classification having no nexus with the SMA’s objective of providing a platform for the secular solemnization of marriages.

Bhat, J., speaking for the majority, follows the general tenor of delegitimization discernible in his treatment of the right to marry, making a similar, sweeping assertion here as well: he states that the SMA, instead of classifying between heterosexual and non-heterosexual couples, actually classifies between “heterosexual couples of differing faiths” . This is because the exclusion of non-heterosexual couples from availing marriage was not a conscious parliamentary choice made during SMA’s enactment, and was, instead caused by Parliament’s epistemic limits: it could not have known that marriage can be conceptualized in any manner but heteronormatively. He provides evidence of such epistemic limits in the form of Section 377 of the Indian Penal Code, 1860 (“IPC”), arguing that since even non-reproductive sexual intercourse constituted a penal offence at the time Parliament enacted the SMA, it could not have imagined the theoretical possibility of non-heterosexual marriage. On this basis, since Parliament could not have intended a classification – and the subsequent denial of marriage – based on sexual orientation, it cannot be said that the SMA in fact classified between heterosexual and non-heterosexual couples for availing marriage:

There was no idea to exclude non-heterosexual couples, because at that time, even consensual physical intimacy of such persons, was outlawed by Section 377 IPC. So, while the Act sought to provide an avenue for those marriages that did not enjoy support in society, or did not have the benefit of custom to solemnise, it would be quite a stretch to say that this included same sex marriages. Therefore, the challenge to the constitutionality of the statute, must fail.

And:

…The classification was primarily not between heterosexual and non-heterosexual couples, but heterosexual couples of differing faiths…

This means that SMA’s differentia itself does not concern heterosexual and non-heterosexual couples, leading to a failure of the Article 14 challenge at its very first prong. Assuming, however, that the classification was based on sexual orientation, and was valid at the time it was made due to the existence of a rational nexus with its objective (of facilitating only heterosexual inter-faith marriage), the next question was whether, with the passage of time, this classification lost its nexus with the original objective, or the original objective itself turned illegitimate. This is because an Article 14 enquiry – apart from examining the classification and its nexus – also asks whether the objective pursued by the classification may be deemed “legitimate” in the first place.

Bhat, J., in order to avoid answering this question genuinely, manoeuvres his way out of it through a very peculiar framing – instead of asking whether the objective of securing a platform for the solemnization of only heterosexual marriages (at the exclusion of non-heterosexual marriages) has turned illegitimate, he asks whether the objective of facilitating inter-faith heterosexual marriages can still – in today’s day and age – be deemed relevant. This question, though wholly disconnected from the question of the SMA’s validity, is answered in the affirmative to somehow sustain it: in other words, the continuing relevance of a platform to solemnize heterosexual inter-faith marriage was invoked to justify the exclusion of non-heterosexual marriage.

Chandrachud, CJ., on the other hand, engages in no such intellectual gymnastics, holding straightforwardly that the Court’s incompetence to grant a suitable remedy for the SMA’s exclusion of non-heterosexual marriage renders an attempt at discerning its validity “futile”:

However, in this case, an exercise to determine whether the SMA is unconstitutional because of under-inclusivity would be futile because of the limitations of this Court’s power to grant a remedy. Whether a change should be brought into the legislative regime of the SMA is for Parliament to determine.

Thus, based on his assessment of the degree of judicial intervention necessary to effectuate non-heterosexual marriage, he prefers abstention as the best option. Kaul, J., who concurs with Chandrachud, CJ., does choose to answer this “futile” question, holding that the exclusion of non-heterosexual marriage u/s the 4 of the SMA does, in fact, constitute a violation of Article 14 . He registers his disagreement with Bhat, J., noting that his assessment of the legislative objective, such that the SMA aimed to provide a platform for the solemnization of only heterosexual marriages, constituted a conflation of the classification and its objective:

I respectfully disagree with my brother Justice Ravindra Bhat, that the sole intention of the SMA was to enable marriage of heterosexual couples exclusively. To my mind, the stated objective of the SMA was not to regulate marriages on the basis of sexual orientation. This cannot be so as it would amount to conflating the differentia with the object of the statute.

In other words, the fact that the SMA presently regulates heterosexual marriages exclusively provides no hint to its legislative objective, for “we…act in ways that do not…correspond to our intent”. Further, assuming Bhat, J.’s identification of SMA’s objective as the exclusive regulation of inter-faith marriage to be correct, he notes that this objective diverged with the classification, and was not subserved by the exclusion of non-heterosexual marriage. The final leg of his disagreement with Bhat, J. concerns the latter’s formalistic affirmation of the SMA’s constitutionality based only on intelligible differentia and rational nexus, without an enquiry into the constitutionality of the objective of exclusively regulating heterosexual marriage. The objective of the sole regulation of heterosexual marriage, Kaul, J. notes, must be a cause of the SMA’s unconstitutionality, instead of a justification to sustain its validity. This is because exclusion based on sexual orientation – akin to discrimination based on “sex” – is prohibited under Article 15(1), and cannot constitute a legitimate state objective. Ultimately, however, even Kaul J. notes that a “spider’s web” of legislation would be disrupted if the Court tinkers with the SMA, and the consideration of separation of powers trumps that of rights-violation.

Despite the disagreements expressed in Kaul, J.’s dissent, the following propositions emerge from the majority opinion: first, the “intent to classify” – which can be discerned from a study of Parliament’s imaginative limitations at the moment of enactment – is a factor in determining a classification’s subject-matter; second, a classification may not express a relationship between an included and excluded group, and can, instead, be defined in reference only to the included group; and third, a classification’s pursuit of a constitutionally incompatible (and morally repugnant) objective is acceptable, and can be invoked to sustain its validity.

On the regressive invention of the “intent to classify”

A classification, as is traditionally understood, concerns the creation of real and tangible groups, on whom different legal standards apply. It arises in multiple ways – a distinct legal regime may be created to govern a group exclusively (this includes all kinds of codified personal law, such as the Hindu Marriage Act, 1955; specific provisions may be created to determine a group’s rights Section 118 of the Indian Succession Act, 1925; or restrictions may be levied on groups’ exercise of their pre-existing rights Section 16 of the Orissa Municipal Act, 1950. A classification, in terms of distinguishing between groups to whom distinct legal standards apply, need not be made legislatively explicit, and can arise as a natural corollary to the inclusion of a single group.

The identification of a differentia is a largely objective enquiry, and requires the demonstration of concrete groups being created through legislation. In Anuj Garg v. Hotel Association, for example, Section 30 of the Punjab Excise Act, 1914 – which prohibited women from being employed by establishments serving liquor – was challenged under Articles 14 and 15. In case the Court employed Supriyo’s logic of “intent to classify”, it could have held that at the time of enactment, Parliament could never have envisioned the possibility of women working in liquor establishments, and never intended to consciously exclude them from such employment, which in turn meant that Section 30 did not classify between “men” and “women”. It, however, did not choose this path, noting straightforwardly the existence of such classification, enquiring next into its constitutional compatibility.

The use of the “intent to classify” principle, when applied to other cases, would have similarly regressive consequences, causing a permanent entrenchment of the status quo by justifying it using lawmakers’ intellectual limitations to conceptualize a fairer, equal world at the time of enactment. In Githa Hariharan v. RBI, the Court could have noted that Parliament, at the time of enacting the Hindu Minority and Guardianship Act, 1956, could never have known that women could be equal guardians of minors, and no classification between “men” and “women” lay in the subordination of women’s rights to guardianship; in Madhu Kishwar v. State of Bihar, it could have wholly rejected tribal women’s demands for equal succession rights on the ground that the Legislative Assembly – when undertaking the codification of customs – could not have envisioned a constitutionally-compliant, gender-equal process thereof; and in Vasantha R v. Union of India, it could have upheld Section 66(1)(b) of the Factories Act, 1948 on the ground that Parliament could not have envisioned that women may also work during night hours, making their exclusion an unintentional incidence of well-meaning legislation.

My point, therefore, is that any standard enquiring into an “intent to classify” for determining a law’s differentia is bound to whitewash highly regressive, hostile acts of discrimination through a simple denial of the classification’s existence, the only evidence for which a Court may offer is Parliament’s epistemic limits, along with its inability to conceptualize an equal society at the time it enacted the relevant law. Such an enquiry, apart from being generally historically inaccurate by presuming the state of mind of hundreds of parliamentarians sitting in the 1950s, has the effect of legitimizing present-day discrimination on the ground that past parliamentarians could never have thought that such groups possessed the basic minimum dignity to be “kept in mind” while being excluded! In other words, such groups were so unimportant – constituting, perhaps, a “minuscule minority” – that even their exclusion was a by-product of things running their natural course. Bhat, J.’s reliance on Section 377 of the IPC to justify the exclusion of non-heterosexual marriage, read in this light, is highly disturbing: it indicates that past unconstitutionality serves as a justification for present discrimination, for such unconstitutionality was the norm to be adhered to by Parliament. Further, in case this logic were to be applied in Navtej, even Section 377 would have likely succeeded in the Article 14 challenge, for in 1860, the Imperial Legislative Council – with its intellectual and moral limitations, along with its adherence to English law criminalizing homosexuality – could not have known that sexual intercourse in non-heterosexual relationships is a facet of human dignity and individual autonomy.

Lastly, it is unclear as to how Parliament’s reliance on an unconstitutional provision justifies its choice to further discriminate, for a declaration of unconstitutionality has effect of making a law “void ab initio”, meaning invalidity that attaches from the moment of enactment. Section 377 was invalid, therefore, at least since the coming into force of the Constitution, in 1950. Judicial invocation of parliamentary reliance on invalid law, in order to justify Parliament’s myopic imagination of marriage in the past, thus stands in murky territory.

On this basis, I submit that the implications of a doctrinal adoption of an “intent to classify” to determine differentia are highly disastrous, and are likely to stultify equality jurisprudence by perpetually pointing to a regressive past. The only way such stultification can be prevented, however, is to face reality and confront factual, verifiable exclusion, instead of ruminating over parliamentarians’ state of mind in the 1950s.

“Classifying without classification” and no-holds-barred objectives

I now address the remaining two prongs of Bhat, J.’s arguments – first, that the SMA actually makes a classification involving “heterosexual couples of differing faiths”; and second, that since the SMA serves the legitimate objective of providing a platform to solemnize inter-faith marriages, a challenge to its validity is obviated.

On the first prong, it is submitted that Bhat, J.’s identification of the classification u/s 4 as comprising “heterosexual couples of differing faiths”, instead of one between “non-heterosexual inter-faith couples” and “heterosexual inter-faith couples”, constitutes a complete misidentification. A differentia, as discussed above, must comprise two groups – one included, and another excluded. In stating that the classification involves only “heterosexual couples of differing faiths”, there is no clarity of the group being excluded at the cost of this group’s inclusion, apart from non-heterosexual inter-faith couples – who Bhat, J. has already concluded, are not being excluded by the SMA. One argument to sustain his identification of the included group, however, could have identified the excluded group as “heterosexual couples of the same faith”. This identification, however, would also be erroneous, for the SMA does not prohibit a couple, both whose members practise the same faith, from solemnizing a marriage thereunder. The SMA, apart from containing no same-faith prohibition, specifically envisions couples marrying thereunder – both whose members are Hindu – u/s 21A. There cannot, fundamentally, be a classification involving a single group by itself, making Bhat, J.’s identification of the classification incorrect.

On the second prong, I propose that the Court’s reliance on the objective of creating a platform for solemnizing heterosexual inter-faith marriages, in order to sustain the SMA’s validity, whitewashes the issue of exclusion. To recap, the Court framed the question as to whether the SMA’s original objective – which was to facilitate heterosexual inter-faith marriages – has turned illegitimate with the passage of time. In response, the Court states that this objective is as relevant today as it was at the time the SMA was enacted, for persons seek to marry persons of different faiths regularly nowadays. Bhat, J. also remarks that the SMA cannot be deemed wholly meaningless due to its exclusion of non-heterosexual marriages, for its relevance – insofar as it concerns heterosexual marriages – is alive and well:

…The relevance of SMA has gained more ground, because of increasing awareness and increasing exercise of choice by intending spouses belonging to different faiths…It cannot be said, by any stretch of the imagination that the exclusion of non-heterosexual couples from the fold of SMA has resulted in its ceasing to have any rationale, and thus becoming discriminatory in operation.

This, however, was uncontested, for none argued the SMA’s loss of legitimacy based on the objective of facilitating inter-faith marriages going stale. The argument concerned the invalidity of the SMA’s objective of regulating exclusively heterosexual marriage, which caused the exclusion of all other forms. An assessment of the constitutional compatibility of this objective, however, is not done in Bhat, J.’s opinion, for he undertakes a repetitive diversion to the SMA’s continued relevance of facilitating inter-faith marriage, portraying the latter as demonstrative of the SMA’s commendable virtues. Such virtues in one respect, however, are no justification for exclusion in another – and it was an enquiry into the latter that was Bhat, J.’s prerogative after identifying the SMA’s objective as regulating exclusively heterosexual inter-faith marriage. This he did not undertake.

Kaul, J.’s dissent points tersely to such errors: he notes that since an objective must be constitutionally compliant, an objective of catering exclusively to heterosexual couples violates Article 15(1), and Bhat, J.’s invocation thereof to justify the classification was, therefore, wrong. Apart from the dissent, it must be noted that Bhat, J. sets the considerations of inter-faith marriage and non-heterosexual marriage at opposing ends, portraying the petitioners as attempting to undo the SMA’s prized progressive credentials. This, however, was not the case: the petitioners consistently pointed to the necessity of preserving the SMA’s inter-faith marriage solemnization machinery, which in turn made a “reading down” of the SMA to permit non-heterosexual marriage the preferable relief, instead of a declaration of its unconstitutionality (Dr. Abhishek Singhvi’s Written Submissions).

Conclusion

On this basis, I submit that the instant case invokes a mix of novel constitutional doctrine, erroneous class-identification, and deliberate diversions to reject the petitioners’ Article 14 case. The most dangerous development of the judgment, which is susceptible to immense misuse, concerns the invention of an “intent to classify” standard, pursuant to which a court may deny the existence of factual, real classes by pointing to imaginative limitations to envision an equal world at the time of enactment. The court, in effect, states that non-heterosexual persons possessed no dignity to even be thought of to be excluded from marriage, and are, therefore, not the subject of SMA’s classification. The subsequent class-misidentification, along with portraying as legitimate the regulation of exclusively heterosexual marriage, adds insult to injury, and marks a substantial setback to Indian equality jurisprudence.