Same Sex Marriage Judgment: So far, but not far enough

It is for Parliament to amend the SMA: to bring same sex marriage within its fold, if so desired.

For a few months, the nation had waited, with bated breath, for judgment in the case of Supriyo @ Supriya Chakraborty and Anr. v Union of India, and connected cases, better known as the same-sex marriage cases. The cases had raised seminal constitutional and legal issues. The majority judgment, though scholarly and lucid, has disappointed the LGBTQAI+ community: It has left the community out in the cold. However, the judgment is a milestone in the community’s struggle for equality, dignity and inclusiveness.  The judgment deserves to be examined critically.

A Constitution Bench of five Judges had heard the cases: The verdict is a split one, 3:2. The majority opinion has been expressed by Justice SR Bhat, Justice PS Narasimha, and Justice Hima Kohli; the minority opinion by Chief Justice of India DY Chandrachud and Justice SK Kaul.

The Areas Of Agreement

There are some areas of general agreements between the majority and minority opinions:

i) The Apex Court has the authority to hear the case and to decide the issues.

ii) To marry is not a fundamental right. Therefore, a relationship between same-sex couples cannot be recognised as a “marriage”.  Thus, the Court cannot direct Parliament to grant legal status to such a relationship.

iii) The provisions of the Special Marriage Act (“SMA”, for short) cannot be held to be unconstitutional. They cannot be read down or tweaked. For, to supply the missing words in a legal provision would be to legislate. The Judiciary cannot legislate.

iv) Queer people do have the right of “an enduring relationship”; they have the right to be protected by the State; they have the right to be included in society; they have the right not to be discriminated against. But it is for Parliament to amend the SMA: to bring same sex marriage within its fold, if so desired.

v) The Central Government should adhere to its undertaking that it will constitute a high level committee dealing with the rights of the LGBTQI+ community. vi) A transgender person in a heterosexual relationship does have the right to marry under the existing laws.

The Significant Differences

On the other hand, there are areas of disagreement between the two opinions:

i) according to the majority opinion, the relationship between a queer people cannot be treated as “civil union” which would allow the couple specific rights and responsibilities that are conferred. upon a “married” couple.

However, according to the minority opinion, the right to form a “union” for the queer couple flows from the fundamental rights of speech, thought, and life. Therefore, queer couple in a “civil union” should be entitled to a “bouquet of rights”.

ii) The circular issued by Central Adoption Resource Authority (CARA) disallows same-sex or unmarried couples from jointly adopting a child. While dealing with the right of the queer couple to adopt a child, the majority did not find the said circular as being unconstitutional. The minority opinion thought the said prohibition is in violation of the fundamental right to equality.

Marriage Is A Fundamental Right

Curiously, both the opinions have held that “marriage is not a fundamental right.” For, the Constitution does not expressly prescribe marriage as a fundamental right. However, certain rights have to be discovered within the umbrella of fundamental rights. The right to information, and right to privacy are equally not expressed in the Constitution. They were discovered through judicial interpretation.

Surprisingly, the majority opinion tries to find the right to marry in Articles 15, 16, 17, 23, and 24 of the Constitution of India. Despite the existence of Article 21, dealing with “life” and “personal liberty”, despite the liberal interpretation of the word “life” by the Apex Court, the majority opinion has ignored the existence of Article 21.

Marriage is one of the rites of passage: It gives birth to another “life”; it enriches a person emotionally, psychologically, and physically. It is fundamental to “life”, as it ensures propagation and continuation of the biological species. The Court has turned a Nelson’s eye to Article 21 of the Constitution of India. Ironically, while claiming that marriage is not a fundamental right, it has denied the right even to the heterosexuals. By doing so, the Court has done a disservice to the people.

The majority opinion has traced the history of “marriage”, as a social institution, in great detail. It noticed that consent and the right to marry have undergone great changes: from non-consensual to consensual, from treating the wife as a subordinate to being an equal partner, from being a sacrament to being “a personal contract between two equals, seeking love, stability and happiness”. But the majority has shackled the concept of “marriage” to its traditional form as being a union between heterosexuals.

It has conveniently ignored that union between the same-sex couples is also for “love, stability and happiness”. The Court could have ushered in a new concept of “marriage”, i.e. between same-sex couples. But it has shied away from taking the plunge.

In Self-Denial Over Activist Role

The majority opinion claims that the Apex Court has interfered in favour of the individual, when State action had threatened the fundamental rights of the people. However, such a reading overlooks the great strides made by the Indian Judiciary.

Initially, the Courts did read the fundamental rights as controlling the power of the State. Under the concept of constitutionalism, the mighty power of the State needs to be cribbed, cabined and confined within the constitutional limits.

But subsequently, the Supreme Court has repeatedly held that the State must take positive steps for implementation of the fundamental rights. For instance, the State must ensure clean environment, roads, healthcare system, and education for children. The PIL jurisdiction has been used to give directions to the State to fulfill the constitutional mandate. Therefore, the Court is unjustified in denying its activist role under the garb of separation of power doctrine.

Lip Service To Dignity, Autonomy, Non-Discrimination

Interestingly, the majority opinion has taken a quixotic position: queer people “too have the right to union or relationship – be it mental, emotional or sexual”. But such a relationship can neither be recognised as a “marriage”, nor as a “civil union”. Moreover, the community cannot “claim entitlement to any legal status for the said union or relationship”.

Such a position ignores certain moot issues: what is the nature of such a “relationship”? What is its legal status?  Is it legal or illegal? If the relationship  is not legal, then can queer persons claim protection from the State? Is the State obliged to protect and promote the interest of queer people? Thus, the majority opinion has confined the queer community to a legal purgatory.

The Court has paid lip service to the concepts of “dignity, autonomy and non-discrimination”. The Court has held that the queer people are entitled to these three legal principles. Yet, by denying their companionship the status of “marriage” and/or “civil union”, the Court has denied them dignity, autonomy of choice and lifestyle; it has subjected them to constant discrimination. Of course the minority opinion has issued the “directions” for the benefit of the queer community. But being a minority opinion, it is non-binding. Instead, these directions are  merely directions.

The Court has applauded the decisions in favour of the queer community. It has noticed the silence of law in protecting and promoting the interest of the said community. It has also said that certain laws indirectly discriminate against the queer community.  But the Court has maintained a studied silence about the human rights of the queer community.

A Historical Moment Missed

In his book, “New Dimensions of Justice”, former Chief Justice of India JS Verma has said that when the laws are silent, when precedents are absent, yet grave legal issues tax the judicial imagination, at such moments, the Judges must use their knowledge of history, philosophy and law to overcome the legal gaps.

It is at such moments, the Judges must ask themselves which direction they want the country to move.  Such historical moments are neither to be missed, nor ignored.

The different opinions in the judgment have presented the proverbial elephant to the seven blind men. Each segment of the society is reading the judgment in a piecemeal manner; extracting what is beneficial for it.

The crux of the reasoning is “you have the right to food, but not the right to eat it.” The Court prefers to hide behind fig leaves of legal jargons and judicial cases. Rather than venturing out, it prefers to hide in a judicial closet.

Justice RS Chauhan (Retd.) was Chief Justice of the Telangana and Uttarakhand High Courts. Views are personal, and do not represent the stance of this publication.