marriage equality

From the Certainty of the Constitution Towards Amorphous Culture and Customs

‘Custom’ and ‘culture’ impacted the judiciary as one saw an increasing trend to use those to justify imposing restrictions on fundamental rights or writing them out of existence.

You can read part one of Indira Jaising’s assessment of the courts in 2023 here.

How has the appeal to custom and culture impacted the judiciary?

It appears to have had a direct impact as the judiciary too has started appealing to culture and customs to justify imposing restrictions on fundamental rights or writing them out of existence.

Nothing illustrates this better than the judgment of Justice P.S. Narasimha in the marriage equality case, that involved a challenge to the Special Marriage Act, 1954.

He begins by saying:

“Marriage is a social institution and the status of the right to marry: There cannot be any quarrel, in my opinion, that marriage is a social institution.”

Two questions arise from this bald statement. In what sense of the word is marriage a social institution?

One might answer this question by saying that its breakdown has consequences for the parties to the marriage and the children of the marriage. These are issues that can be addressed by secular law, not religious codes, as has been done for the Hindu law of marriage.

The learned judge then proceeds to say:

“In our country, it [marriage] is conditioned by culture, religion, customs and usages. It is a sacrament in some communities and a contract in some other.”

There is no logical connection between these two statements. Even if marriage was not governed by sacrament or contract, it would still have social consequences, for example, the homelessness of women or the abandonment of children.

It would still be a social institution in which the society has a stake and the State has a legitimate interest in intervening to prevent the adverse consequences of a breakdown.

The question of whether marriage is a sacrament or a contract has consequences only for the form in which the marriage is solemnised. Some people choose to solemnise marriage in a secular form, some in a religious form and some in both.

Now let us look at the issue of marriage as a contract. What is being referred to here is the nikah at the time of a Muslim marriage where the man and the woman agree to wed each other. That is the contract.

This should not be something special to Muslim marriages.

Is it being suggested that a Hindu marriage does not require the two parties to consent to the marriage simply because it is a “sacrament”?

That would be a preposterous proposition to make and hence one must presume that a Hindu marriage involving a saptapadi also required the consent of the two parties to the marriage. This argument applies equally to a Parsi marriage or a Christian marriage or a secular marriage under the Special Marriage Act.

The judge then goes on to say, “State regulation in the form of codification has often reflected the customary and religious moorings of the institution of marriage.

An exercise to identify the purpose of marriage or to find its ‘true’ character is a pursuit that is as diverse and mystic as the purpose of human existence; and therefore, is not suited for judicial navigation.”

This is a complete cop-out. To say that the law in any circumstances cannot decide the content of marriage is to avoid a decision on the subject. I have said elsewhere that it is an agreement, hence a contract requiring informed consent between two people to share their lives, their hopes and aspirations with each other, their joys and their tragedies, to have sexual intercourse with each other, the exclusion of the rest of the world.

Also read: There May Be a Silver Lining in the Supreme Court’s Marriage Equality Judgment

In the choice of partner, the State has no legitimate interest. What the State does have a legitimate interest in is the distribution of assets and custody of children upon the breakdown of a marriage.

The judge then goes on to say, “But that does not render the institution meaningless or abstract for those who in their own way understand and practice it.” Indeed people do have their own understanding of what marriage is and it is far from being meaningless or abstract.

But for the judge in question it does render the institution abstract since “to identify the purpose of marriage or to find its true character that is as diverse and mystic as the purpose of human existence”.

It is the judge here who has abandoned his judicial robe and put on that of a mystic. One wonders why it is so important to give marriage such an exalted social status if one is not able to define it. Surely, it cannot be a social institution and a mystic one at the same time!

We are then told “the rules governing marriage and family, were largely customary, often rooted in religious practice. This exercise of codification, not always accurate and many a time exclusionary, was the product of the colonial desire to mould and reimagine our social institutions.”

It is here that we can identify in the judgment the underlying major premise (unspoken). Marriages are largely governed by religion, (and should continue to be) save for the “colonial desire to remould and reimagine our social institutions”.

There is amnesia about the fact that social reformers of Indian origin campaigned for the abolition of sati, for widow remarriage, for the right of woman to education, and for gender equality in the matter of inheritance.

To call it “colonial desire” is ahistorical. It also echoes the narrative of the ruling party that they are decolonising laws passed by the British – the language here is similar.

The subsequent mention of much-needed social reform does not make a difference to the underlying issue that marriage is a religious not a social institution governed by ancient custom which predates the Constitution of India. One must not forget the fact that custom, in order to be law, must be shown to exist since “time immemorial”.

We are then told, “Even when our own constitutional State attempted codification and reform, it left room for customary practices to co-exist, sometimes providing legislative heft to such customary practices.”

Different marriage laws are then cited to substantiate this. A glance at each of these indicates that they all relate to the form in which marriages may be solemnised, including diverse religious forms, but there is a failure to recognise that none of these laws address the substance of what is a marriage.

A bouquet of statutes offers a choice to parties to a marriage in what manner they wish to solemnise a marriage but what they have in common is the fact of a marriage by consent of the parties, not a “mystic” pursuit.

The form in which a marriage is solemnised cannot take away from the essential substance of a marriage, be it heterosexual or queer. There is an utter confusion between understanding the substance of the marriage and the form in which it is solemnised.

It is true that most marriage laws do have two substantive qualifications, one of age and the second the exclusion of prohibited degrees.

This is so that the State can have a legitimate interest in ensuring that those who consent to a marriage are in a position to give informed consent and so far as the prohibited degrees are concerned, this is for reasons of maintaining the health of the community and prevent inbreeding.

They can be said to be reasonable restrictions on the right to marry, constitutional or statutory. What is more, the restriction on prohibited degrees can be waived by custom. Hence, custom, far from restricting the choice of partner, enhances it.

And now for the final punch, the underlying premise, “In my considered opinion, the institutional space of marriage is conditioned and occupied synchronously by legislative interventions, customary practices and religious beliefs.

“The extant legislative accommodation of customary and religious practices is not gratuitous and is to some extent conditioned by the right to religion and the right to culture, constitutionally sanctified in Articles 25 and Article 29 of the Constitution of India.

“This synchronously occupied institutional space of marriage is a product of our social and constitutional realities, and therefore, in my opinion, comparative judicial perspectives offer little assistance.

“Given this nature of marriage as an institution, the right to choose a spouse and the right of a consenting couple to be recognised within the institution of marriage, cannot but be said to be restricted.”

So, there we have it, the right to marry is not a fundamental right but wait a minute, even if it was, it can be restricted by culture and religion.

In the hierarchy of norms, this represents a complete surrender of our constitutional freedoms and rights to “culture”, howsoever defined, with which the courts cannot interfere.

The logical fallacies and contradictions in this judgment are immense. Understating statutes is weak, with an inability to distinguish between formal validity and substantive validity of a marriage, an understanding of what are called “personal laws” is absent (notice that the words are not mentioned here).

If indeed there is no fundamental right to marry, what is there to prevent the State from telling us who to marry and who not to marry, or from saying Bharatiya culture will determine that question as well?

The judge points out, “Even today, much of the Mohammedan law of marriage is governed by religious texts and customs and there is hardly any State intervention.”

We are not talking about the role of the State here but that of the judiciary in sitting in judgments over statutory law.

The judge forgot to mention that in Shayara Bano versus Union of India and others, the Supreme Court struck done the customary practice of triple talaq at the invitation of a Bharatiya Janata Party (BJP)-led government.

Also read: Triple Talaq: Why Just Muslims, Let’s Criminalise the Abandonment of All Wives

Further, the judge states, “The claim of the right to marry, de hors the existing statutory framework, is nothing but a claim to create a legally and socially enforceable status.”

May we have a legal definition of “status”? Being unmarried is also a status, not created by law, so what is the relevance of the fact that marriage is a status?

Then there is the question of marriage laws not being standalone laws. “They interact in multifarious ways with succession, inheritance and adoption laws, to name a few.”

But all these already have existing statutory frameworks. So far as inheritance is concerned, almost all personal laws permit the making of a will and the disposing of property to a greater or lesser extent.

Moreover, the Special Marriage Act was specifically amended to ensure that if two Hindus marry under the Special Marriage Act, they do not have to be governed by the Indian Succession Act, 1925 but will continue to be governed by their personal laws. Incidentally, this exception was made for Hindus alone and no other community.

Having concluded there is no right to marry, the judge concludes there is no right to a “union or an abiding cohabitational relationship”. Perhaps he overlooked the definition of a “domestic relationship” in the Protection of Woman from Domestic Violence Act, 2005 which recognises relationships “in the nature of marriage”.

The Chief Justice of India opines that “it is insufficient if persons have the ability and freedom to form relationships unregulated by the State”. He goes on to state that there is no right to “recognition” of the relationship by the State.

But he forgets that in the Shayara Bano case, the argument made was the act of recognition of triple talaq was an act of the State and it should be derecognised by the court.

The judge says, “In my considered opinion, it is in positively mandating the State to grant recognition or legal status to ‘unions’ from which benefits will flow, that the doctrine of separation of powers is violated.”

Was the doctrine of separation of powers violated when the court declared triple talaq unconstitutional?

Justice P.S. Narasimha continues, referring to his disagreement with the judgment of the Chief Justice of India, “Moreover, the right to a union cannot be located in Article 25 of the Constitution of India.

“Emphasis is placed on the term ‘freedom of conscience’ because that would situate in this freedom of conscience, the right not only to judge the moral quality of one’s own action but also to act upon it.

“If that were permissible under Article 25, then the textual enumeration of freedoms in Article 19 becomes redundant since these freedoms can be claimed to be actions on the basis of one’s own moral judgment. I find it difficult to agree with such a reading of Article 25.”

There are two fallacies here. Article 25 explicitly allows us to judge the moral quality of our actions and to act on them so long as we do not harm public order, morality, health and the fundamental rights of others.

Nowhere does the judge state that non-heterosexual relationships are immoral. Moreover, way back in Maneka Gandhi vs Union Of India, the court pointed out that rights overlap with each other and create a “golden triangle”. Hence, the fact that there is an overlap in the content of the right is of no consequence.

He concludes “for the reasons stated above the Petitions are dismissed”.

The judgment shows that, mirroring the Executive, our courts have set up a norm above the norm of the Constitution, i.e., culture, and will not enforce the text of the Constitution when it conflicts with the culture, howsoever defined. It is indeed the repudiation of the judicial function.

The legal community needs to be vigilant to prevent this failing court since the future of the rights of citizens seems to be in jeopardy.

The marriage equality judgment is the only judgment of the Supreme Court besides the one that held that Hinduism is a way of life and not religion alone which legitimises culture as the measure of whether a restriction on a right was reasonable or not.

We note that Article 13, which declares all laws that violate fundamental rights void, defines law to include “custom” but it does not include ‘culture’ as law. Yet today we have a judgment that clearly permits culture to trump fundamental rights.

If the cultural test of “reasonableness” can be used to uphold governmental action, why can it not be used to interpret the Constitution itself or the validity of a constitutional amendment for that matter?

Keshavananda Bharati versus State of Kerala, which was decided in 1973, held that the basic features of the Constitution, such as fundamental rights, secularism, democracy and federalism, could not be amended even by a Constitutional amendment.

Yet, today we see the same result as we would by an amendment by the creation of a norm higher than and inconsistent with the values of the Constitution.

A new set of practices has replaced constitutionalism and legality and has been elevated to the level above the Constitution with reference to which the Constitution and its basic features are to be interpreted. Rights, as we know them, are replaced by duties, negating the entire chapter on fundamental rights.

Our fundamental duties now take precedence over our fundamental rights. We must all do our ‘kartavya’ without any expectation of freedom. A new language of politics and consequentially law has been invented in place of constitutionalism.

We are told that there is an “intrinsic dharma” of the people of India which is ancient and predates the Constitution. Once a norm above the Constitution is created, it is easy to see why there is no need to amend the Constitution.

That is why I say that 2023 has been the year of the surajmukhi court.

Indira Jaising is a noted human rights lawyer and a senior advocate at the Supreme Court of India. She is a co-founder of The Leaflet, where this article first appeared. It has been republished with permission.

Nepal Becomes First South Asian Country to Officially Recognise a Queer Marriage

Twenty-seven-year old Surendra Pandey and 37-year-old Maya Gurung registered their marriage five years after getting married at a temple.

New Delhi: Nepal has become the first South Asian country to officially register a queer marriage. The registration took place in Lamjung, according to The Kathmandu Post.

Twenty-seven-year old Surendra Pandey and 37-year-old Maya Gurung registered their marriage five years after getting married at a temple, the portal reported.

“We met in a restaurant and immediately liked each other. After a couple of weeks of courtship, we moved in together,” said Maya about their meeting around nine years ago. “But our family and society did not accept us. We then moved to Kathmandu. Although we got married in a temple five years ago, our marriage was not legally recognised.”

Dordi Rural Municipality chairman Yuvaraj Adhikari told The Kathmandu Post that the couple’s registration request had been filed a week ago. “Their marriage has been registered at the ward office after the Department of National ID and Civil Registration instructed it to register the marriage in the temporary record as per the Supreme Court’s interim order until the formulation of a law,” said Adhikari.

In June this year, Nepal’s Supreme Court had passed an interim order saying same-sex couples should be allowed to register their marriages while a final decision is made on the matter.

Rights activists have welcomed Surendra and Maya’s marriage registration. “It is historic,” Sunil Babu Pant, founder of the Blue Diamond Society, told Reuters. “It will open the door for them to jointly open bank accounts, own and transfer property like just any other couples.”

It is Time for the Indian Government to Come up With a Comprehensive Equality Act

The significance of India’s stance also extends to its neighbouring nations in South Asia. A more inclusive approach could inspire neighbouring countries, fostering a wave of progressive change. Conversely, a regressive stance could have the opposite effect.

The Supreme Court’s recent decision denying legal recognition to queer marriages represents a significant setback for LGBTQIA+ rights in the country. This verdict, delivered by a constitution bench, featured four separate judgments written by Chief Justice of India (CJI) D.Y. Chandrachud, Justice S.K. Kaul, Justice Ravindra Bhat, and Justice P.S. Narasimha, with Justice Hima Kohli concurring with Justice Bhat’s viewpoint. In addition, the Supreme Court also declined to grant adoption rights to queer couples, with a 3:2 majority vote.

Effectively, the Supreme Court has passed the responsibility of recognising same-sex marriages to the legislature. While this might seem like a return to square one, it is crucial to acknowledge the positive aspect of CJI Chandrachud’s declaration that queerness is a natural phenomenon and that the right to enter into a union cannot be restricted based on gender identity.

In short, it has been a blend of setbacks and some progress, and the apex court has now agreed to consider review petitions on the verdict that stems from 20 petitions filed by same-sex couples, transgender individuals, and LGBTQIA+ activists. These petitions collectively challenged the provisions of the Special Marriage Act, 1954, the Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969, contending that these legislations, in their current form, perpetuated discrimination against the LGBTQIA+ community by failing to recognise non-heterosexual marriages.

Challenging the status quo

The legal journey leading to this verdict saw several significant developments that underscored the complexity of the issue at hand. It began with the Union challenging the maintainability of the petitions, setting the stage for a protracted legal battle. The apex court initially made it clear that it would not interfere with personal laws, limiting the challenge to the scope of the Special Marriage Act, which raised questions about the fate of marriage equality in the country. The Union’s dismissal of the pleas for marriage equality as the views of a few “urban elitists” marked a turning point, as the Supreme Court disagreed with it, suggesting a potential shift in societal attitudes.

Also read: There May Be a Silver Lining in the Supreme Court’s Marriage Equality Judgment

The CJI’s observations on gender fluidity were pivotal as he emphasised its multifaceted nature and challenged the simplistic definitions found in the Special Marriage Act. The Supreme Court’s recognition of the inclusivity of Indian culture and traditions hinted at the need for a more progressive approach towards queer rights.

The Bar Council of India’s plea to leave the issue to the legislative process citing widespread opposition underscored the challenges faced by the LGBTQIA+ community. Discussions about introducing gender-neutral terms in the Special Marriage Act represented a hopeful step towards recognising queer marriages. Ultimately, the Union’s agreement to examine rights for same-sex couples without providing legal recognition marked a glimmer of hope amid a contentious legal battle.

A missed opportunity

In the culmination of this legal battle, Justice Kaul, while delivering the verdict, acknowledged the historical injustice and discrimination faced by the queer community. He highlighted the opportunity to rectify these wrongs and called for governance to grant rights to such unions. However, this opportunity remains unrealised. The Supreme Court has indeed set a positive narrative on queer rights by emphasising that selecting a life partner is a fundamental aspect of one’s life choices, intimately linked to the right to life and liberty under Article 21 of the Indian constitution.

Nevertheless, these considerate words lack concrete action, as the verdict does not result in any amendments to existing acts or the reading down of Section 4 of the Special Marriage Act, 1954. There is still a long road ahead for LGBTQIA+ rights in India, and the verdict emphasises the pressing need for legislative reform to ensure equal rights for all citizens.

India’s legal revolution for queer rights

The legal landscape on the self-determination of life partners within the LGBTQIA+ community in India has borne witness to profound changes over the years. Recent proceedings within the Supreme Court have manifestly illustrated a paradigm shift in legal paradigms. Prominent adjudications have been instrumental in sculpting this evolution.

In the NALSA vs Union of India case, the Supreme Court staunchly upheld the autonomy of transgender individuals in determining their gender identity, thereby mandating the legal recognition of male, female, or third gender. The KS Puttaswamy vs Union of India judgment recognised the right to privacy as a sacrosanct fundamental right, nullifying antecedent verdicts that cast aspersions on the entitlements of LGBTQIA+ individuals.

The Shafin Jahan vs Union of India ruling emphasised the prerogative to select one’s partner as a foundational tenet of liberty and dignity. The Shakti Vahini vs Union of India decision fortified the right to choose a life partner as an inherent entitlement, particularly in cases where consenting adults forge a union. The watershed moment arrived with the Navtej Johar vs Union of India verdict, as it dismantled IPC Section 377, thereby decriminalising homosexuality and emphasising parity within the LGBTQIA+ community.

Moreover, the Deepika Singh vs Central Administrative Tribunal ruling acknowledged the diverse familial configurations, encompassing queer matrimonial unions. Collectively, these cases signify a progressive legal transformation in India, affirming the right of the LGBTQIA+ community to select their partners, and asserting their liberty, while underscoring equality and dignity as quintessential principles.

Implications and global impact

The Supreme Court’s denying legal recognition of queer marriages and adoption rights for LGBTQIA+ couples has significant ramifications for India’s global standing, especially in the realms of human rights.

This verdict threatens to cast a shadow over India’s international reputation. It projects an image of India as a nation that is not wholeheartedly embracing and safeguarding the rights of its LGBTQIA+ populace, potentially subjecting it to criticism and scrutiny from international human rights bodies and foreign governments. Internationally, this decision might be perceived as a stark departure from prevailing legal norms that vehemently advocate for equality and non-discrimination. A multitude of countries have already recognised same-sex marriages and instituted comprehensive legal protections for LGBTQIA+ individuals. In this light, India’s stance could be seen as a regressive outlier in the global context.

Furthermore, certain countries and international organisations hold LGBTQIA+ rights in high regard and have integrated them into their diplomatic relationships and trade agreements. India’s position may lead to potential diplomatic friction or trade impediments with these nations.

Also read: With the SC’s Same-Sex Marriage Verdict, the Onus of Being Safe Is on the LGBTQI People Again

The verdict’s impact goes beyond legal matters; it may influence the fate of LGBTQIA+ individuals who face persecution in their home countries and seek refuge in more inclusive nations. This decision could undermine India’s status as a potential sanctuary for such individuals, potentially reducing the number of LGBTQIA+ asylum seekers in the country.

On the global stage, international LGBTQIA+ rights organisations may intensify their advocacy efforts and exert greater pressure on India to overhaul its legal framework to align with universally recognised human rights standards. This could elevate the discourse surrounding India’s LGBTQIA+ rights policies in international forums.

The significance of India’s stance also extends to its neighbouring nations in South Asia. India’s posture on LGBTQIA+ rights can serve as a powerful influencer. A more inclusive approach could inspire neighbouring countries in the region to adopt similar policies, fostering a wave of progressive change. Conversely, a regressive stance could have the opposite effect, discouraging regional progress.

Global progress in marriage equality

In the evolving landscape of marriage equality, the global stage now boasts a remarkable 35 countries that have embraced the legalisation of same-sex marriage. Notably, the Thailand cabinet’s recent approval of an amendment to its civil code to allow same-sex marriage this week gives a new push to this ongoing narrative. With expectations for the draft to be submitted to parliament next month, this move aligns with a growing trend among nations to recognise and codify equal marital rights for all individuals.

Similarly, the legislative triumph in Estonia on June 20, 2023, also signals a noteworthy stride forward, with its enactment slated for January 1, 2024. In the realm of legislative action, 23 countries, including Australia, Ireland, and Switzerland, charted their course towards inclusivity through comprehensive national statutes, a significant milestone achieved in some cases after resounding nationwide referendums.

Also read: How Standards Were Created to Fit the SC’s Denial of the Right to Marry to LGBTQ People

Conversely, the legal tapestry weaves another strand of progress, as 10 nations, spanning from Austria to Brazil, and Colombia to Ecuador, seized the mantle of same-sex marriage through court decisions, illustrating the potency of judicial activism. Notably, South Africa and Taiwan, guided by the compelling voices of their judiciaries, responded with legislative endorsement in compliance with these court directives.

Importantly, Pope Francis suggested that “it may be possible to bless same-sex unions” as the defence of objective truth includes kindness, patience, understanding, tenderness, and encouragement so that pastoral prejudice or a mistaken concept of marriage must not stop blessings. He was responding to five conservative cardinals who urged him to affirm the Catholic Church’s teaching on homosexuality.

Subsequently, Bishop Karl-Heinz Wiesemann of Speyer, Germany, asked priests to ‘bless’ homosexual unions. This tapestry reflects not only the global scope of progress but also the multitude of paths taken, as the world continues to journey toward universal marriage equality. The imperative for the global community lies in acknowledging that equality necessitates the guarantee of uniform access to available choices for all individuals.

The need for a new legal framework

It is essential that India moves beyond symbolic gestures and takes concrete steps to ensure equality and inclusivity for its LGBTQIA+ citizens. The legal framework, as it stands, falls short of safeguarding their rights and recognising their lived experiences. It is imperative to acknowledge that the fight for LGBTQIA+ rights is not merely about marriage but extends to securing comprehensive legal protection and equal opportunities in all aspects of life.

To address this, a new legal framework should be established to recognize same-sex marriages, adoption rights, and other aspects of LGBTQIA+ equality. This framework should be based on principles of equality, non-discrimination, and respect for individual autonomy, echoing the progressive values enshrined in the Indian constitution. Such a framework should include all genders, identities, and orientations, offering comprehensive protection against discrimination in areas like education, employment, healthcare, and housing.

A comprehensive equality act

In light of the Supreme Court’s verdict, it is time for the Indian government to draft and implement a comprehensive equality act. This act would provide comprehensive legal protection for LGBTQIA+ individuals, addressing not only the recognition of same-sex marriages but also issues like adoption, non-discrimination, and healthcare access.

The legislation shall be part of a groundbreaking policy perspective designed to promote inclusivity and equal rights for the LGBTQIA+ community. At its core, the proposed act advocates for the official recognition of same-sex marriages and equal adoption rights for LGBTQIA+ couples, acknowledging the diversity of unions and ensuring equitable legal standing for all families.

Going beyond marital rights, the legislation should take a firm stance against discrimination, prohibiting biases based on sexual orientation, gender identity, and expression across various sectors, including education, employment, housing, and healthcare.

Emphasising the role of education in fostering understanding and acceptance, the act shall encourage the promotion of LGBTQIA+ awareness and inclusion in educational curricula. Additionally, it would address the unique healthcare needs of LGBTQIA+ individuals by ensuring access to inclusive healthcare services including gender-affirming care. This comprehensive policy proposal aligns with the values of democracy, equality, and non-discrimination and is a significant step toward creating a more inclusive and just society for all citizens. It is a reminder that legal change is not only about the courtroom but also about the legislative process and democratic spirit that shapes the nation’s future.

Amal Chandra is a student rights activist. Hima Tara Sam is a student of History at Delhi University.

SC’s Marriage Equality Judgment: Manufactured Classifications and Return of ‘Minuscule Minorities’

The court’s assertion that the Special Marriage Act, 1954 didn’t exclude non-heterosexual marriages, attributing it to Parliament’s lack of awareness during enactment, is a novel and dangerous constitutional doctrine, potentially legitimising regressive laws based on historical intellectual limitations.

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.

There May Be a Silver Lining in the Supreme Court’s Marriage Equality Judgment

The way forward for the queer community, perhaps, is not to insist on a right to marry but to challenge laws that privilege marriage over other forms of familial and kinship bonds.

The recent judgment of the Indian Supreme Court on marriage equality was, without a doubt, a disappointment for India’s queer community. With a 3:2 majority, the Supreme Court held that queer couples in non-heterosexual relationships do not have a fundamental right to marry and denied legal recognition to their relationships. The court’s judgment placed heterosexuality at the centre of marital relationships by holding that marriage between persons of opposite gender is the only valid form of marriage under Indian law.

Thus, while transgender persons identifying within the gender binary who are in heterosexual relationships are entitled to marry, queer couples who do not find themselves in what can be classified as heterosexual relationships are left without any legal remedy.

But perhaps in rejecting that there is any fundamental right to marry under the Constitution for queer couples or otherwise, the court has opened a portal (especially in the minority opinions) for re-imagining the existence of what were understood to be matrimonial entitlements (like succession rights, adoption, guardianship, financial entitlements that accrue to spouses etc.) beyond marriage. We discuss the implications of this possibility.

The petitioners had primarily mounted a challenge to the provisions of the Special Marriage Act, 1954 arguing that the non-recognition of non-heterosexual marriages under the Act violated their fundamental right to marry and discriminated against them on the basis of sexual orientation. An important prong of the petitioners’ argument was that they are denied the matrimonial benefits listed above.

Also read: Two Steps Forward, Three Steps Back: Supreme Court Verdict on Marriage Equality

Many challenge the idea of marriage as the ‘norm’

Indeed, the queer community’s quest for marriage is either grounded in (i) the belief that marriage is a normative ideal to which queer people should also have access to; or (ii) marriage provides a bouquet of entitlements, the absence of which significantly disadvantages those in queer relationships. Some queer individuals will agree with both propositions. But many challenge the elevation of marriage as the norm and as an ideal that all of us should aspire towards. They highlight the oppressive foundations of marriage, specifically its heterosexist nature and foundation in caste endogamy, which is difficult to dismantle. Further, they argue that marriage as an institution, through the bundle of rights and entitlements it provides, privileges married partners over others who choose to not marry or cannot marry.

It is difficult to contest that marriage is founded on heterosexist norms. Marriage continues to be imagined primarily as a heterosexual union (even if the social reality may be different or is changing). Queer people across jurisdictions have won marriage rights after much suffering and only after being able to prove that their love/relationship conforms to a heterosexual ideal.

The majority opinion authored by Justice Bhat in the marriage equality judgment also highlights and reinforces the heterosexist values that are attached to marriage. He says, ‘marriage, however, has been regarded for the longest time, as a relationship of man to woman’ and at another place, he reiterates that, ‘traditions of marriage per se may not support the basis of recognition of marital relationships between non-heterosexual couples’.

Examples of weddings between same-sex couples in India or of relationships that are functionally identical to marriage between same-sex couples (in the absence of legal recognition) are not enough to displace the normative assumption that marriage is a heterosexual union. Social marriages that deviate from the heterosexual script are considered only as exceptions, not as evidence of a pluralist understanding of marriage. They remain exceptions because the norm that the marriage establishes is of the heterosexual union.

Even if we say that queer couples, by gaining the legal right to marry, can somehow displace these heterosexist assumptions of who can marry and whom, they cannot dismantle the privilege of committed coupledom that marriage prescribes over other forms of adult associations and kinship. This is because these other forms of adult associations veer off the course of heteronormativity in ways that same-sex committed coupledom does not. As Katherine Franke has argued: same-sex marriage can still fall under the ambit of traditional family values that promote nuclear family, bourgeois respectability and privatised dependency.

Feminist critique of marriage

Marriage’s place as the normative ideal creates symbolic harm for individuals, queer or otherwise, who refuse to participate in marriage. In fact, feminist critiques of marriage as an oppressive institution have been the most trenchant. They have highlighted how marriage continues to be a patriarchal institution, even if many of the marriage laws that discriminated against women (like the law of coverture) have been removed.

Also read: Supreme Court’s Marriage Equality Judgment Represents Judicial Abdication

Queer participation in marriage reinforces its status as the most sacred form of commitment, as the only relationship form that can confer dignity to queer lives and something that saves individuals from the doom of loneliness. In Obergefell v. Hodges, the US Supreme Court relied on similar tropes stating that marriage has some transcendental importance and it’s the only institution that can fulfil our most ‘profound hopes and aspirations’.

Even Justice Bhat in the majority opinion refers to similar uncritical characterisations of marriage, stating that it is regarded ‘as one of the most important relationships’ and a ‘building block’ of the society. But do cohabiting unmarried partners, hijra gharanas, mentors and mentees or intimate friends not form networks or relationships equally worthy as marriage, where they share love, caregiving responsibilities and companionship?

If marriage is an oppressive and exclusionary institution and queers, women and the unmarried are better off without it, at least its legal existence, why does it remain important?

The answer lies in the minority opinion of Chief Justice of India (CJI) D.Y. Chandrachud in the marriage equality judgment where he states that marriage is not by itself as fundamental to our lives, it has gained significance because the state regulation of ‘family’ has conferred certain benefits to those who are married.

As Clare Chambers notes, marriage is the relationship that ‘the state assumes, defines, regulates, and recommends’. Hence, although marriage undermines our transformative goals of establishing an egalitarian order where a plurality and diversity of relationships or lifestyles are valued, we are forced to use the institution of marriage because it’s the only way we get access to certain entitlements (next-of-kin privileges, ability to be on disability pension plans of our partners, employment benefits, workmen’s compensation etc.) These entitlements protect us from certain vulnerabilities that arise at the breakdown of relationships or our adult networks of care (through legal entitlements to shared property, custody of children, maintenance etc.)

The creation of the concept of the right to form an abiding union (sans marriage) discussed in minority opinions of CJI Chandrachud and Justice Kaul goes someway in displacing the centrality of marriage over other relationship forms in our understanding of a family.

CJI Chandrachud in his minority opinion develops the concept of abiding cohabitational unions drawing from the observations in the Deepika Singh judgment where he held that atypical families are equally deserving of protection under the law and benefits under the social welfare legislation as traditional families. In the marriage equality judgment, he emphasises that we may find ‘companionship’ and ‘value-abiding relationships with other human beings in different forms and capacities’.

Also read: Justice Ravindra Bhat’s Legacy Goes Beyond the ‘Marriage Equality’ Judgment

CJI Chandrachud finds the legal justification for the right to form such unions under Articles 19, 21 and 25 of the constitution. Crucially, the CJI reads Article 19(1)(c), which confers the freedom of association, to include the right to form intimate associations. Now this has the possibility to extend beyond relations of conjugality or coupledom and encompass various permutations and combinations, even though CJI Chandrachud himself does not fully acknowledge this radical potential of the right to form intimate associations and limits himself to the discussion of queer couples forming unions.

There is a certain tension in his opinion where he recognises that companionship, commitment and care can flow from different forms of associations – including friendship, mentor-mentee relationship or queer kinship networks that are not based on biological bonds – but then he reverts the idea of queer coupledom when he explicitly pens out who is the beneficiary of this right to form a union.

Be that as it may – and this is where the majority disagrees with him – CJI Chandrachud, says that these associations need to be recognised by the state so that there is actually a ‘free and unrestricted’ exercise of this freedom. In the absence of the conditions that facilitate the exercise of a particular freedom, the freedom to do something becomes meaningless.

Entitlements such as access to ration cards, joint bank accounts, next-of-kin privileges in case of a medical event, jail visitation rights, access to the body on death, succession rights, maintenance, financial benefits under the Income Tax Act and employment benefits relating to gratuity, family pension, insurance etc. are usually exclusive to traditional families – relationships born out of marriage or blood ties.

CJI Chandrachud does not conclude that queer couples in unions are entitled to the same entitlements that a legally recognised married couple would possess but leaves it to a committee headed by the cabinet secretary to define and elucidate the scope of these entitlements. This deferral has been subject to criticism as the majority judgment refuses to even accord a right to union to queer couples and considering the position of the Union government on this issue, it is unlikely the executive would take on this task.

While many of the entitlements available to those in unions are left to the committee to decide on, the CJI’s minority opinion explicitly delinks adoption from marriage. Relying on Article 14 of the Constitution (right to equality) and Article 15 (right against discrimination), he holds that both married and unmarried couples – including queer couples – are entitled to adopt. He questions the assumptions of the government’s adoption regulations that envision that only married couples can provide a stable environment for a child. He observes that ‘there is no single form of a stable household’.

CJI Chandrachud states the stability of a household is not dependent on marital status but rather on factors like the investment of time and effort by parents in running the household, their ability to create a safe space, the absence of physical, emotional and mental violence in the household etc. These observations displace marriage as the ideal and normative form of relationship.

But the majority opinion, in a disappointing turn of events, holds that while adoption law does make assumptions about who is fit to be a parent, there is once again a deference to the executive. In effect, the majority abdicated its responsibility for assessing the discriminatory assumptions that the law makes about unmarried couples when it comes to adoption.

Other entitlements granted to ‘non-traditional’ families

However, in addition to the right to adoption, the CJI’s opinion has fallen short of actually granting entitlements to non-traditional families. Both his and the majority’s opinion would have benefitted from looking at some of the other entitlements that have already been granted to non-traditional families.

The Himachal Pradesh high court in 2016 recognised the customary significance of the guru-chela relationship and held that the guru was entitled to the property of the deceased chela. Similarly, the Mental Healthcare Act 2017 permits the nomination of a representative who does not fall within the traditional category of family. While these legal entitlements have limited import, the court had the opportunity to build upon these in the judgment to some extent, perhaps in the form of interim remedies instead of leaving the entire task to the executive.

Overall, we can derive two possibilities from CJI Chandrachud’s minority opinion for creating a more egalitarian legal framework on relationships i.e. (a) to think of intimate associations beyond marriage and (b) to delink what were thought to be matrimonial benefits from marriage. We note that the minority opinion of Chief Justice Chandrachud itself does not expand the concept of associations beyond coupledom, but it carries the radical potential to do so.

Rituparna Borah’s petition was one of the pleas filed in the marriage equality case that advocated for the queer individuals’ right to form ‘chosen families’. The minority opinion creates an opening for demanding legal status and regulation for such ‘chosen families’ in the different forms they may take. This can include creating legal access to material benefits as well as providing legal protection from vulnerabilities that arise on account of being in any relational setting.

The way forward for the queer community, perhaps, is not to insist on a right to marry but to challenge laws that privilege marriage over other forms of familial and kinship bonds. It is to return to the politics of queer liberation which has space for plurality and diversity. It is not to resign ourselves to a second-class status but to build coalitions with those who are perhaps not queer by identity but still ‘queer’ enough to reject the institution of marriage.

But what of the majority opinion one may ask? While the majority has rejected the right to form a union, Article 14 (right to equality) which requires the state to make reasonable classification still exists. The classification between married and unmarried under the law is often more moral than reasonable. Also, many important constitutional principles that we know today found their place first in the dissents or minority opinions, before they became the opinions of the court. There is much to be discontented with, but transformative readings of law are always possible.

Aishwarya Singh is a lecturer at Jindal Global Law School, Sonipat. Meenakshi Ramkumar is a Visiting Assistant Professor at the National Law School of India University, Bangalore teaching Family Law. Views expressed are personal.

Disclaimer: Aishwarya Singh is a former judicial law clerk of CJI Chandrachud.

US ‘Monitoring’ Indian Govt’s ‘Follow-up Steps’ After SC Declines to Legalise Same-Sex Marriage

Saying that it ‘supports marriage equality globally’, the US has encouraged India to work towards offering equal legal protection to same-sex couples.

New Delhi: The US is closely “monitoring follow-up steps” from the Indian government after the Supreme Court declined to legalise same-sex marriage, the US State Department said on Thursday.

“The United States supports marriage equality globally,” a US State Department spokesperson said, according to Reuters. “We are closely monitoring follow-up steps from the government and reactions from civil society on this issue following the court’s ruling.”

It has further encouraged India to work towards offering equal legal protection to same-sex couples, the report added.

In its 2:5 judgment, the apex court declined to legalise same-sex marriage and left it to the parliament to decide on this matter.

n its petitions to the top court, the Union government had opposed same-sex marriages. It had argued that the institution of marriage is “exclusively heterogenous” and those seeking same-sex marriages represent “urban elitist views for the purpose of social acceptance”.

It had said that same-sex marriage is not “comparable with the Indian family unit concept of a husband, a wife and children”.

However, while delivering the judgment, Chief Justice of India D.Y. Chandrachud noted: “Queerness is not urban or elite.”

“It is not an English speaking man with a white collar man who can claim to be queer but equally a woman working in an agricultural job in a village,” he said. “…Queerness can be regardless of one’s caste or class or socio-economic status.”

Previous US State Department reports have raised concerns over treatment of religious minorities, journalists, and dissidents in India. However, Prime Minister Narendra Modi has declined that any such discrimination exists in India.

Supreme Court’s Marriage Equality Judgment Represents Judicial Abdication

The court was not asked to legislate and create an institution where none existed; it was asked to ensure that access to institutions that the legislature has already recognised was non-discriminatory. In this fundamental task, the court has failed miserably.

The Supreme Court judgment rejecting the right of same-sex couples to marry speaks of there not existing a constitutional right to marry, of the need for judicial discipline and the idea that the judiciary is not the correct forum to accommodate polyvocality in social issues. Vaguely intelligible obfuscation amounting to no more than the intellectualisation of the obscene, the rationalisation of the indefensible.

This case, in fact, was much simpler than all these justifications might lead the reader to think.

It was not necessary for the court to recognise a constitutional right to marry. The right to state-sanctioned marriage has already been granted by the same legislature the court otherwise seems comfortable deferring to, granted under the secular regime that is the Special Marriage Act. The primary issue before the court, by its own determination, was more limited – under that secular regime, once the right to marry is recognised, is it permissible for it to be extended to heterosexual couples but not to homosexual couples?

The question, then, was not whether de novo a same-sex couple can claim that the state must recognise their right to marry. Instead, the right of same-sex couples to marry was being asserted in the context of the state choosing to recognise some marriages and not others; of privileging some intimacies and not others; of saying some people can make end-of-life decisions for those they love and not others. The court was not to answer whether the Constitution granted a right to marry; it was to answer whether the Constitution permitted such a right to be granted selectively. The court was not asked to legislate and create an institution where none existed; it was asked to ensure that access to institutions that the legislature has already recognised was non-discriminatory.

Also read: Two Steps Forward, Three Steps Back: Supreme Court Verdict on Marriage Equality

In this fundamental task, the court has failed miserably.

The court’s fallacy is perhaps best demonstrated by examining an analogy the majority opinion uses – it reasons that just because there exists a right to movement does not entitle a petitioner to approach the court and seek the construction of a specific network of roads. The analogy captures the very core of the court’s reasoning – the court, apparently, cannot by judicial diktat create laws or frameworks where none exist. That may well be the case. However, it seems to elude the court that a road has, in fact, already been constructed here; it needed only to declare that no citizens could then be denied access to it.

Equally regrettable is the court’s hand-wringing about how polyvocality cannot be accommodated in a judicial setting, and consequently the court is an inappropriate forum for making decisions about complex social issues like same-sex marriage. Undoubtedly, same-sex marriage is an issue which divides opinion in the socio-political realities of India. Undoubtedly, it is desirable that consensus on this issue be gradually built on the ground so that society’s acceptance of evolving norms is deepened. Undoubtedly, the executive and legislature are better-placed than the judiciary to build and assess that consensus.

None of this entitles the court to hold an individual’s rights hostage to the building of that consensus. Consensus-building matters because it enables a deeper percolation of constitutional norms, not because public opinion exists outside of and beyond constitutional norms. State discrimination against a minority can never be recognised by majority fiat. In the face of conflicting opinions about an individual’s constitutional rights (or, worse, unanimity about trampling on them), the role of the court is to stand up for that individual. It cannot and must not be to relegate that individual’s rights to the realm of policy debate simply because many others differ about the nature of those rights, and by so relegating them to the realm of policy debate concede the field utterly to the majoritarian impulses of the legislature. Polyvocality matters when debating the finer points of where public money should best be spent; it does not matter while recognising that the state is denying a group of individuals their fundamental right to equality.

This judgement does not represent judicial restraint. It represents judicial abdication.

Kaustubh Chaturvedi is an advocate practising before various fora in Delhi. He’s an alumnus of the National Law School of India University, and can be contacted on kaustubhchaturvedi@outlook.com.

Two Steps Forward, Three Steps Back: Supreme Court Verdict on Marriage Equality

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 experienced the same phenomenon.

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.

‘Huge Legal Setback’: How English Newspapers Responded to Marriage Equality Verdict

Several of the editorials expressed the opinion that the court had missed an opportunity to end existing discrimination.

New Delhi: Editorials in India’s major English-language newspapers on Wednesday (October 18) talked about the Supreme Court’s decision the day before not to legalise marriage equality, and instead say that any such granting of rights had to be done by the executive.

Several of the editorials expressed the opinion that the court had missed an opportunity to end existing discrimination, and that the judgment comes as a setback for the queer community’s fight for rights and equality.

Here’s a look at what some of the newspapers had to say.

The Times of India

“Do same-sex couples have same constitutional rights as straight couples? Yes, should have been SC’s answer,” The Times of India headlined its editorial. It pointed out that the petitioners were only asking for a different reading of the Special Marriage Act and hence access to legal rights, they were not “seeking religious validation or social approval as an “Indian family unit””.

“The right to equality and non-discrimination means that LGBT citizens should not be deprived of what heterosexual people take for granted. The right to same-sex civil unions should have flowed naturally from these facts,” the newspaper stated.

The court was not being asked to intervene in the custom of marriage, but only in the contract with rights and obligations, as it is laid down in the Special Marriage Act, The Times of India said. “SC’s core job is to uphold constitutional rights, irrespective of popular endorsement or social custom. It could have affirmed constitutional principles, and then left it to the legislature to do its job. If Parliament differed, and it might well have, given what seems to be the prevailing political opinion, the court would have still done right by constitutional principles. That is all that India’s sexual minorities had wanted from the country’s top court.”

The Hindu

The Hindu called the court’s decision a “huge legal setback” for the queer community in India. “In concluding that there is no fundamental right to marry, the Court has negated the expectation that it would not allow discrimination against same-sex couples in the marital domain to continue,” the newspaper stated.

“Given that large sections of India may be opposed to the legalisation of same-sex marriages on religious and cultural grounds, the possibility of Parliament taking the initiative to do so is quite bleak. The LGBTQIA+ community may now have to take heart from the Court’s direction that the government should form a committee to decide the rights and entitlements of queer couples. The community, however, still has quite a struggle ahead before the law catches up with its yearning for equality,” the editorial concludes.

Hindustan Times

Saying the court’s decision to not take any steps at all in the direction of equality, and instead leave everything to a Union government-appointed committee, “disappointing”, Hindustan Times called Tuesday’s verdict a setback when compared to other decisions like the decriminalisation of same-sex relationships.

“In every country, the journey from decriminalisation of queerness to recognition of marital rights has been long and arduous. So, granting full marriage rights to the community was always an outlier, especially considering the tangled mesh of secular and personal laws that govern marriage, divorce and inheritance in India. But the court’s refusal to accord even limited recognition to queer couples and leave it instead to executive fiat is disappointing,” the newspaper said.

Hindustan Times stated that the struggle for equal rights will continue: “…in the long arc of queer history — which has seen the top court dismiss a community as a “minuscule minority” only to say history owes an apology to them five years later — it is only a stumble, one that hopefully will not hobble the quest to ensure a life of dignity to millions of Indian citizens.”

The Indian Express

While the court did not provide the landmark judgment many may have expected, The Indian Express writes, its recognition of existing discrimination “has opened up valuable room for finding a way forward”.

“The court did not go far enough even as it has prised open some space and widened the room for manoeuvre for an embattled minority. Its categorical no to same sex marriage can also be said to make many of its empathetic observations on rights and discrimination seem like tokenism. In the end, therefore, the verdict points at the larger battles that still remain to be fought – the necessity of safeguards both within the home and outside, the recognition of civil unions as a possibility for the community, and the realisation, above all, that like all battles for equal rights, this, too, has a long and arduous road ahead,” the newspaper editorial stated.

The Tribune

The Tribune has expressed agreement with the court’s view that it is the executive that must make decisions of this kind.

“Though the court has not given same-sex couples the legal nod to marry, the majority verdict has underscored the dire need to protect them from discrimination, harassment and mockery. Union and state governments have a key role to play in sensitising the public about the rights of this vulnerable section of society. And it is up to the legislature to create a legal framework for queer couples. Whether lawmakers are sincere about empowering the LGBTQIA+ community will be known in due course,” the newspaper said.

SC Judges Show Empathy With Queer Concerns, But Fail to Give Relief Citing Complexities Ahead

Justices S. Ravindra Bhat, Hima Kohli and P.S. Narasimha differed from Chief Justice of India D.Y. Chandrachud and Justice S.K. Kaul on moulding relief to the petitioners in the marriage equality case because they found the means adopted by the latter were not “legally sound”.

New Delhi: A reading of 3:2 366-page judgment in Supriyo @ Supriya Chakraborty vs Union of India, pronounced by the five-judge Constitution bench on Tuesday (October 17), shows that the petitioners in the case succeeded in securing empathy, if not justice, from the bench, to their prayers for recognition of the right to marriage equality.

Doubtless, there was unanimity among the five judges on certain aspects. The court’s authority to hear the case was one such. The second aspect is that queerness is a natural phenomenon that is neither urban nor elite. The third is that there exists no fundamental right to marry under the Constitution. Fourth, the Special Marriage Act (SMA) is neither unconstitutional nor can be interpreted in such a manner so as to enable marriage between queer persons. Last, transgender persons in heterosexual relationships have the right to solemnise marriage under existing legal frameworks.

Beyond these, a distinction is discernible in the manner the majority and minority judges approached the issue. Justices Ravindra Bhat and Hima Kohli begin their judgment by observing that the task of the court lies in determining how the Constitution speaks on the issue. The five judges have no difficulty in agreeing that the Constitution aims at ending the discrimination suffered by the petitioners whose prayer is that the court should ensure their equality in marriage and not simply ask parliament to look into their grievances.

But the complexity of the exercise of granting appropriate and adequate relief to the petitioners appears to have forced all the five judges to throw in the towel. In this, the two minority judges failed to persuade the three majority judges to provide at least partial relief to the petitioners.

The prayer of the petitioners is that LGBTQ+ persons be entitled to solemnise and register their marriages and claim their right to legal recognition of their unions within the marriage fold.

All the five judges agreed that provisions of the SMA are incapable of being “read down” or interpreted by “reading up” in the manner suggested by the petitioners.

But then the three majority judges agreed that reading down Section 4(c) of SMA and Sections 4(c) and 17 of the Foreign Marriage Act, 1969 (FMA) and the notice and objection procedure under SMA can be decided by smaller benches because no question of law is involved in resolving this issue. Does this mean that the petitioners still can aspire for an efficacious remedy before smaller benches of this court, and relitigate some of these issues, left untouched by the larger bench?

The minority judges’ worldview

According to Justices D.Y. Chandrachud and S.K. Kaul, while there is no express fundamental right to marry, there is a right or freedom to enter into a union (spelt out in Navtej Johar, K.S.Puttaswamy, NALSA, Shakti Vahini, Shafin Jahan etc.) and our constitutional values entail respect to the choice of a person on entering into a marriage and the right to choose a marital partner.

As a corollary, the two minority judges held that the right to union necessitates or places a positive obligation on the state to accord recognition to such relationships/unions.

The majority judges’ counterview

To the three majority judges, however, there is indeed a right to relationship within Article 21 which 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. The state, however, is bound to extend necessary protection only when their right to enjoyment of such a relationship is under threat of violence, they clarified.

There is no positive obligation on the state to recognise this right, they held. The court cannot direct that the state must create a platform for this purpose, as that would be a stretch, in the absence of any overt or inert threat, they added.

To the majority judges, the idea that one right can lead to other rights, emanating from it, has been conclusively rejected by seven judges in All India Bank Employees Association v National Industrial Tribunal. This decision was quoted with approval in Maneka Gandhi v Union of India. (The right to go abroad is clearly not a guaranteed right under any clause of Article 19(1)).

“There is no recorded instance nor was one pointed out where the court was asked to facilitate the creation of a social institution like in the present case,” the judgment authored by Justice Bhat and joined by Justice Kohli observed.

The majority judges termed CJI Chandrachud’s previous observations in Navtej Johar as mere obiter dicta.

In their view, Justice Chandrachud’s broader observations in Navtej Johar obliging social institutions to accommodate and facilitate exercise of choice fully were not necessary. “They travelled beyond the scope of the court’s remit and have to be viewed as obiter dicta. That the State should or ought to order such social institutions, is different from a direction issued by this court, which they must carry out (both underlined and italicised by Justice Bhat),” Justice Bhat observed.

“Even if we were to, for argument sake, recognise an entitlement under the Constitution to enter into an abiding cohabitational relationship or union – it cannot follow to a claim for an institution. There are almost intractable difficulties in creating, through judicial diktat, a civil right to marry or a civil union, no less, of the kind that is sought by the petitioners in these proceedings,” the majority judges concluded.

“Ordering a social institution” or rearranging existing social structures, by creating an entirely new kind of parallel framework for non-heterosexual couples, would require conception of an entirely different code, and a new universe of rights and obligations. This would entail fashioning a regime of state registration, of marriage between non-heterosexual couples; the conditions for a valid matrimonial relationship amongst them, spelling out eligibility conditions, such as minimum age, relationships which fall within “prohibited degrees”, grounds for divorce, right to maintenance, alimony etc.,” the majority judges explained.

The nitty-gritty of providing relief to the petitioners, even as the majority judges empathised with their prayers, made them feel that this is beyond the scope of the present bench.

The elaboration of rights of queer persons, to say that exercise of choice to such relationships renders these rights meaningful, and that the state is obliged to “recognise a bouquet of entitlements which flow from such an abiding relationship of this kind” is not called for, the majority judges explained their disagreement with the minority judges.

The majority judges, in the process, added many more reasons, not contemplated by the minority judges, to reject the petitioners’ prayer to read up the SMA.

The provisions and the objects of SMA clearly point to the circumstance that parliament intended only one kind of couples, i.e., heterosexual couples belonging to different faiths, to be given the facility of a civil marriage, they said.

Structurally, Section 4 (conditions relating to solemnisation of special marriages) contemplates marriages between a man and a woman. To read SMA in any other manner would be contrary to established principles of statutory interpretation. It is also not permissible for the court to ‘read up’ and substitute the words ‘any two persons” to refer to a marriage between non-heterosexual couples, they added.

The purpose of terms like ‘wife, ‘husband’, ‘man’ and ‘woman’ in marriage laws (and other laws on sexual violence and harassment as well) is to protect a socially marginalised demographic of individuals. Provisions in the SMA, for alimony, and maintenance (Sections 36 and 37) confer rights to women; likewise certain grounds of divorce (conviction of husband for bigamy, rape) entitle the wife additional grounds (Section 27) to seek divorce, the majority judges explain.

The general pattern of these provisions – including the specific provisions, enabling or entitling women to certain benefits, and the effect of Sections 19, 20, 21 and 21A of SMA is that even if for arguments’ sake, it were accepted that Section 4 of SMA could be read in gender neutral terms, the interplay of other provisions – which could apply to such non-heterosexual couples in such cases, would lead to anomalous results, rendering the SMA unworkable, they pointed out.

One wonders whether the petitioners, represented by a galaxy of senior counsel, were able to answer these concerns adequately during the hearing. It is possible that many of them conveyed their belief that a mere declaration by the court recognising their right to marriage equality would ensure resolution of such concerns in due course of time. But it appears that the judges – both majority and the minority – felt that the nitty-gritty ought to get precedence before a formal declaration from the court recognising the petitioners’ right to marriage equality, as it would only mean a mere lip service.

If provisions of the SMA are to be construed as gender-neutral (such as persons or spouses, in substitution of wife and husband) it would be possible for a cis-woman’s husband to file a case or create a narrative to manipulate the situation. Gender-neutral interpretation of existing laws, therefore, would complicate an already exhausting path to justice for women and leave room for perpetrator to victimise them, says Justice Bhat’s judgment. Obviously, the majority judges seem to have been swayed by hypothetical situations, which can yield their own legal remedies when they actually happen, in declining relief.

“Words of the statutes have to be read, taking into account the fabric of concepts, rights, obligations and remedies which it creates. Removing or decontextualising provisions, from their setting and “purposively” construing some of them cannot be resorted to, even in the case of SMA as well as FMA,” the majority judges reasoned.

Empathy

The majority judges agreed that not providing for non-heterosexual couples recognition, which is available for heterosexual couples’ unions and cohabitation as marriages in various laws and regulations, results in their exclusion. They thus referred to employment (nominations in pension, provident fund, gratuity, life and personal accident insurance policies), credit, purposes of receiving compensation in the event of fatal accidents as instances.

The individual earned benefits (by each partner or both collectively) which would be available to family members (such as employee state insurance benefits, in the event of injury of the earning partner, provident fund, compensation, medical benefits, insurance benefits, in the event of death of such earning partner) are examples of what the injured or deceased partner by dint of her or his work, becomes entitled to, or the members of her family become entitled to. The denial of these benefits and inability of the earning partner in a queer relationship, therefore, has an adverse discriminatory impact, they acknowledged.

The state may not intend the discrimination, or exclusion in the conferment of such benefits or social welfare measures. Yet, the framework of such policies or regulations, expressed in favour of those in matrimonial relationships, results in denial of entitlements/benefits, despite the professional abilities and contributions which such individuals might make to society.

This deprivation has to be addressed, the majority judges held. This injustice and inequity results in discrimination, unless remedial action is taken by the state and Central governments, they point out.

While the right to marry or have a legally recognised marriage is only statutory, the right to cohabit and live in a relationship in the privacy of one’s home is fundamental, and enjoyed by all. This is not to say that the latter is unqualified or without restriction. Rather it is a right afforded to all, irrespective of the state’s recognition of the relationship or status, as in the case of married couples, the majority judges conceded.

The discriminatory impact recognised here is to highlight the effect of a legislative vacuum – specifically on long-term queer couples, who do not have the avenue of marriage to entitle them to earned benefits, they underlined.

Could this same logic then be extended to heterosexual couples that choose to not get married, despite having the avenue?

The majority judges underlined that this would require further consideration by the State, and was an aspect that was neither argued, nor were the judges called upon to decide in the present petitions. “State must remain cognizant of such an unwitting consequence of creating two parallel frameworks, for live-in or domestic partnerships, and marriages, and the confusion or anomalies this may cause to gendered legal frameworks (as they stand today) while trying to remedy or mitigate the discrimination faced by queer couples,” they added.

The fact that parliament has made the legislative choice of including only ‘married’ couples for joint adoption (where two parents are legally responsible) arises from the reality of all other laws wherein protections and entitlements flow from the institution of marriage.

To read down ‘marital’ status as proposed may have deleterious impacts that only the legislature and executive could remedy – making this, much like the discussion on interpretation of SMA, an outcome that cannot be achieved by the judicial pen. Having said this, however, there is a discriminatory impact on queer couples, perhaps most visible through this example of adoption and its regulation that requires urgent state intervention, the majority judges acknowledge.

In the absence of legal recognition of a queer couple union, they are left to adopt as individuals and the resultant de facto family would have no avenue for legal recognition. This iniquitous result too is an aspect which needs to be addressed as the impact here is not only on the queer couple (who have no avenue to seek legal recognition of their union) but also upon the children adopted by them (who have no say in the matter), they added.

Given the social reality that queer couples are having to adopt in law as individuals, but are residing together and for all purposes raising these children together, the State arguably has an even more urgent need to enable the full gamut of rights to such children, qua both parents, the majority judges highlight.

“The underlying assumption in the law as it exists that such unmarried heterosexual or queer couples should not adopt needs to be closely examined. The need of such couples to have and raise a family in every sense of the term, has to be accommodated within the framework of the law, subject to the best interests of the child,” they have suggested.

“The existing state of affairs which permits single individuals to adopt, and later to live as a couple in due exercise of their choice, in effect deprives the children of such relationships various legal and social benefits, which are otherwise available to children of a married couple. The State as parens patriae needs to explore every possibility and not rule out any policy or legislative choice to ensure that the maximum welfare and benefits reach the largest number of children in need of safe and secure homes with a promise for their fullest development,” they have recommended.

The majority judges identified their disagreement with the minority judges thus:

“The court would have to fashion a parallel legal regime, comprising of defined entitlements and obligations. Such a framework containing obligations would cast responsibilities upon private citizens and not merely the State. The outlining of a bouquet of rights and indication that there is a separate constitutional right to union enjoyed by queer couples, with the concomitant obligation on the State to accord recognition to such union, is what we take exception to.”

By merely expecting the Union government to take the initiative and address the grievances of discrimination of the queer couples in specific areas, the majority judges seem to have missed an opportunity to at least make a beginning, and join the minority judges in meeting the aspirations of the LGBTQ+ persons to the extent possible.