On Tuesday, Chief Justice of India (CJI) D.Y. Chandrachud pronounced his minority ruling in a 3:2 verdict on 21 pleas seeking the right of queer couples to marry. The decision came nearly five months after the top court heard arduous arguments for and against the plea.
The matter garnered a lot of anticipation and thousands of listeners tuned in when the CJI said, “There is a degree of agreement and degree of disagreement [among the judges].”
Not long after, he spoke of the doctrine of separation of powers. He said, “The doctrine of separation of powers means that each of the three organs of the State performs distinct functions. No branch can function like any other’s function. We can’t compel Parliament or state assemblies to create a new institution of marriage.”
A principal-agent relationship is often used to describe the interaction between lawmakers and the executive tasked with carrying out the legislators’ wishes. The main objective here is to establish the circumstances that will give the principal confidence that its wishes are being carried out by its agents, despite the fact that their component parts may differ significantly from one another.
Arie Rosen, in his article ‘Statutory Interpretation and the Many Virtues of Legislation’, condenses the questions of interpretive values to “ceteris paribus, how the deference and respect we owe to legislative decisions should affect the way we interpret them”. To this contention, he writes, “The question of which approach is appropriate depends on the ultimate value and purpose we attribute to the legislative process.”
Queer rights and the right to privacy
Justice S. Ravindra Bhat noted in his judgment on marriage equality, “Right to cohabiting cannot lead to setting up of an institution… ordering a social institution or rearranging existing social structures would require construction of new code and also require marriage laws concerning alimony etc… queer people have the right to privacy, dignity and to choose a partner. We disagree with the CJI in this regard which forms the basis of the final conclusions.”
This is an important observation by Justice Bhat’s view that needs further reflection.
A view of love that places a premium on intimacy within the boundaries of one’s own privacy calls for non-interference since, in its traditional liberal form, privacy refers to the right to be free from outside interference. This idea has been used to argue against recognising the relationships that result from love and does not necessarily require doing so.
Accordingly, if we view the right to love as a crucial component of one’s quest for self-fulfilment and self-respect, failing to give full acknowledgement to any expression of that love would be a violation of that right.
The Yogyakarta Principles, which were widely cited to define the rights of transgender people in the NALSA verdict (2014) in the framework of India’s legal system, strangely appear to have been disregarded in the marriage equality judgment. Particularly, Principle 24, which addresses the right to have a family, unambiguously ensures that members of the queer community can get married, have children, and choose surrogacy.
When the fundamental guidance offered by globally renowned organisations like the International Commission of Jurists and the International Service for Human Rights appears to have been disregarded in the process, the discrepancy between legal interpretations is especially apparent.
In fact, it is important to note that numerous legal judgments have consistently read Article 21 of the Indian constitution in a way that recognises the contextual foundations of core Yogyakarta Principles. For instance, the Jammu and Kashmir high court wisely noted that “the right to marry a person of one’s choice is integral to Article 21 of the constitution” in its deliberations on the matter of Sweta Dogra.
The Supreme Court. In the background is a pride flag. Photos: File and Flickr/Quinn Dombrowski (CC BY-SA 2.0)
Structures and compositions of judicial machinery
Activists and members of the community criticised the government’s Transgender Persons Right to Protection Bill for several reasons, including the way it characterised transgender people as “neither wholly female nor wholly male.” The measure was then referred to a parliamentary standing committee. The Bill was brought back by the government to Lok Sabha in December 2018, where it was approved with 27 modifications that changed the definition of a transgender person.
The Bill’s failure to recognise the right to gender identity is one of the primary criticisms levelled against it. The Bill only permits a person to be labelled as “transgender” on their certificate up until the point at which they have sex reassignment surgery and apply for a new certificate. A clause to establish a district screening committee was also inserted. Based on its recommendations, the district magistrate will issue a gender identity certificate. Activists protested this move by asking “How will district magistrates understand what the transgender community goes through?”
Post-colonial scholars have also emphasised that focusing solely on legal rights without challenging systems like colonialism, neoliberalism, authoritarianism, patriarchy, and class that restrict access to legal rights reduces human rights to merely legal changes that only have a very limited impact on practice.
Some South Asian scholars have also underlined the need to understand how social battles for securing and exercising legal rights are affected by factors such as power, unequal access to resources, and political effects.
The legal battle for marriage equality has experienced the same phenomenon. The composition of the bench was cisgendered-heterosexual savarna judges – four men and one woman (who did not give her judgment).
Representation and diversity are critical for juridical review and action in locating agency and voice for a community that is otherwise marginalised – and discriminated against based on their identity.
Earlier this year, the Supreme Court collegium reaffirmed the recommendation for appointing advocate Saurabh Kirpal as a Delhi high court judge, dismissing the law ministry’s concerns about his sexual orientation. Although it has long been speculated that the advocate’s homosexuality brought on the government’s opposition, the collegium has now officially verified it.
In addition, in his judgment, CJI Chandrachud directed the government to form a committee to determine the rights and entitlements of those who are in queer partnerships, including ration cards, the ability for queer couples to nominate for joint bank accounts, rights resulting from pension, gratuity, etc. However, no direction has been issued towards the composition of the committee.
In summation
Manan Kumar Mishra, an attorney and the chairman of the Bar Council of India, has persistently fought against same-sex unions in India, claiming that they are incompatible with the ideals of the country’s culture and civilisation. He went on to say that no Indian faith endorses such couplings. These views were, in essence, supported by the verdict issued today, which emphasised the Special Marriage Act’s guiding principles. These interpretations place limitations on people, forcing them to abandon their queer or transgender identity to gain full recognition as citizens under the law.
The nation has a history of legislative violence, particularly evident in the language used and the misinterpretation of the right to self-determination of one’s gender under the Transgender Persons Right to Protection Act, 2019. Delegating the responsibility of marriage equality to the legislature would be no less of a disaster.
Tavleen Kaur is senior research assistant and team lead of Swabhimaan initiative with the Centre for New Economics Studies (CNES), O.P. Jindal Global University. She is studying Law at the Jindal Global Law School. Deepanshu Mohan is professor of economics and director, CNES, O.P. Jindal Global University. Anvitha V. Gowda is a research assistant with CNES and a member of the Swabhimaan initiative.
To read more of Team Swabhimaan’s work, please access its website from here.