This month’s entry concerns a case which arose through an unfortunate series of incidents, but which signposts to important future developments in sexual orientation and gender identity laws in the country. In this matter, an employee of a Bangalore based company alleged harassment regarding his sexual orientation and caste identity. The case presents a complex factual situation in which the employee felt increasingly undervalued in the organization; his work received neither recognition nor feedback, his superiors did not speak to him professionally, and jokes and innuendos about his sexual orientation peppered the sarcastic remarks made to him by his colleagues. When he complained to his superiors, things got worse and his colleagues taunted him calling him a snitch (Arrey sir aapse kaun kya bolega, kise apni Naukri nahi pyari hai !’/’ Arrey sir lijiye kursi lijiye warna meri naukri chali jayegi). The employee finally committed suicide but before taking his life, he filed a sexual harassment complaint with his company and a case under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Upon his death, his father filed an abetment to suicide case against his alleged harassers, viz., colleagues and superiors from the company. The present case asked whether the abetment case could be quashed. The consideration of the question raised an important question of law and fact. I shall take each in turn.Continue reading
PART 1 OF 2
On the 17th of October 2023, a 5-judge bench of the Indian Supreme Court decided whether queer couples could get married under the existing secular marriage law in India. In short, they answered no. As is customary in such instances, I will first provide the conclusions reached by the court. However, I find that it is hard to provide a faithful summary of the decision because the judges spoke in so many different voices and picked up such different philosophical strains to supplement their reasoning. It is rather more interesting to pick up some of the constitutional law questions they raised and answered and try to gauge their significance for Indian constitutional law.
I. WHAT WAS DECIDED
The following was incontrovertibly decided in this case:
- There is no fundamental right to marry.
- The Special Marriage Act, 1954 (‘SMA’), the Act at the centre of the case, cannot be interpreted in a way that allows non-heterosexuals to marry. Doing so would require the court to substitute words of the Act in several places and reading the Act differently for heterosexual and non-heterosexual couples. Furthermore, it would require altering other laws, for example, laws relating to succession, where sex places an important role. The court would be entering the field of legislation if it did this—something clearly beyond its institutional capacity.
- The SMA was not unconstitutional.
- Some transgender and intersex persons have a right to marry, viz., those in heterosexual relationships.
- Adoption is only available to queer persons as singles. They could not adopt if they were in a live-in relationship, even if one person adopted. The only way a child can be given in adoption to a home where two adults were in a relationship is if they were married, among other things.
- Queer persons have a ‘right to a relationship’ which has already been recognized in Navtej and Puttuswamy. The includes the right to sexual, emotional, and zonal intimacy, and the right to live together, and enjoy other concomitant rights flowing from dignity and autonomy.
- There is no right to a civil union. The institution of civil unions does not exist in India and the judiciary is incompetent to create it via diktat.
II. QUESTIONS OF CONSTITUTIONAL SIGNIFICANCE
The following questions of constitutional significance were raised in the case. Some were answered by the court but many open further questions for time to consider. What they share is their ability to take constitutional jurisprudence in interesting directions and so I will raise them here for you to consider.
- Can a judge declare a fundamental right in one case and then take it back in another?
- Can the judiciary avoid acting once it has found an Act discriminatory?
- Is there a conceptual difference between declaring the right to a constitutional value and the right to enter an institution?
1. Can a Judge Declare a Fundamental Right in one Case and then Take it Back in Another?
In this case, all the judges agree that there is no fundamental right to marry. This statement sits uncomfortably considering Justice Chandrachud’s earlier finding in Shafin Jahan that, ‘The right to marry a person of one’s choice is integral to Article 21 of the Constitution.’ In that case, the appropriate scope of operation of the writ of Habeas Corpus in relation to an adult woman’s marriage was under examination. While the case did not expressly call for considering whether marriage was a fundamental right, Justice Chandrachud, who wrote the concurring judgment went so far as to hold that marriage is a fundamental right. However, in the present case, the same judge narrowed the scope of that declaration by stating that that statement was made in relation to a couple that already had the right to marry. Can this characterization be accepted? The earlier statement was made without qualification and reference to context. It might have been possible to accept the narrowing of a right in relation to a non-fundamental right, by looking at it from the point of view that this is how judge made law gets refined, but it is difficult to accept this statement with respect to a fundamental right. If the rights declared are fundamental, how then can they change form depending on the sexual orientation of the couple in question? Any restriction of the fundamental right can only be made by the State, and this is certainly not the case here. One way to harmonize the seemingly contradictory findings is to say that what J. Chandrachud stated in Shafin Jahan was the obiter and not the ratio, therefore, it did not rise to the level of law. Perhaps that is how history will reconcile these two competing claims. Another way to think about this is to ask if the present case needed to find that there was no fundamental right to marry because finding that there was such a right would not have helped the petitioners in any case—the SMA could not have been interpreted in any other way within the institutional scheme the court tethered itself to, and holding it unconstitutional would have left many heterosexual couples without a legal route to marry. Admittedly, this is a cynical reading of the law, but it leads me to the second question under discussion.
Questions 2 and 3 are discussed in the next blog.
 Para 21 of the concurring judgment of Justice Chandrachud in Shafin Jahan.
PART 2 OF 2
2. Can the Judiciary Avoid Acting Once it has Found an Act Discriminatory?
In the Chief Justice’s own words, if a statute is found to be unconstitutional, it must be read up or read down or found unconstitutional. Perhaps this is why he did not engage with the constitutionality of the SMA at all, because he was not prepared to do either. Reading up or down would have been prohibited by institutional capacity because of what the petitioners were asking, and striking the legislation down would have deprived many others of the benefit of the Act. However, once he found that the non-recognition of non-heterosexual marriages denies the social, material, and expressive elements of marriage, traceable to so many fundamental rights (14, 19, 21, 25, etc), was it open to him to deny looking at the constitutionality of the SMA, the legislation squarely under question in the case? My view is that it was not. Justice Kaul went one step further to expressly find that the SMA is discriminatory because it makes an unconstitutional classification between heterosexual and queer couples but did not hold it unconstitutional. With respect, it is not open to the judiciary to avoid finding a statute unconstitutional for prudential reasons, especially because only three recourses have been suggested by the judiciary itself—reading up, reading down, and striking. In this respect, Justice Bhatt’s judgment in which Justice Hima Kohli joined, bears closer fidelity to the constitution. Justice Bhatt answered the question of classification in the positive, finding nothing wrong with the Act’s decision to provide a method for heterosexuals to marry while excluding non-heterosexuals. He agreed that the Act could have made a better classification but since the classification was still relevant (i.e., these two categories of people continued to exist) and the objective, viz., to provide a means for inter-faith heterosexuals to marry matched reasonably with the classification, the Act was valid. In this way there was no reason for him to read up, read down, or indeed strike down the legislation. I raise this point because all the judges were united on the discriminatory effects of the SMA and in their belief that queer couples are entitled to receive all the benefits available through the protection of fundamental rights. Striking down the SMA would have provided a fresh opportunity for the Parliament to create new marriage law which if it excluded non-heterosexual relationships from its ambit would now have a harder time justifying its choices.
3. Is there a Conceptual Difference between Declaring the right to a constitutional value and the right to enter an institution?
This was not a case where any of the judges doubted the moral worth of queer persons. If there is a measure of progress, it is in this, even if the substantive matter did not turn out in the favour of many constituents of the queer community. The disagreement between the judges was what they could do to remedy the situation. Justices Chandrachud’s and Kaul’s remedy was a civil union, the mechanics of which were to be worked out by the State, whereas the majority found that nothing more than reiterating the ‘right to relationship’ without the legal status of a civil union was within the court’s capacity. The difference according to the majority lay in providing access to an institution and declaring access to certain constitutional rights. It concluded that the former was not within their powers. However, this distinction cannot withstand conceptual scrutiny. Imagine that women are provided access to all male profession in furtherance of their fundamental right to equality. In recognizing this right, the court has provided access to an institution, changing its contours forever. How is that different from providing access to marriage in furtherance of other fundamental rights? Furthermore, Article 142 of the Constitution which provides the courts the power to pass directions to do complete justice does not in any way qualify those powers—the court can equally provide access to an institution as it can to certain fundamental rights. After all, the Vishaka case in which the court came up with a scheme to address sexual harassment in the workplace where none existed, and many other cases like it, are examples of this very power of the court. Therefore, declaring the right to a civil union as fundamental and directing the State to come up with a legal framework for the right is entirely within the court’s competence, and the majority has missed an opportunity by failing to engage with the possibility.
Finally, in my view, the legacy of this case is Justice Chandrachud’s lengthy exposition of the court’s constitutional role. An important point of contention in the case, both during the argument stage and in public discourse, had been that judicial review of the SMA will take away the citizens’ right to participate in the political process. In other words, if there is a right to marry to be given to queer persons, it should be the Parliament’s call, and not the courts. This argument sits in the context a larger debate in India currently about the court’s powers to review any legislation at all—because the court is not elected by the people. The chief justice took this opportunity to clarify that within the constitutional scheme, the court has been granted explicit powers to review legislation. Electoral democracy was but one aspect of constitutional democracy, which was equally supported by substantive values (the constitution) and constitutional governance (governance responsibility divided between institutions). Within this scheme, the chief justice clarified, the court had a democracy enhancing role by ensuring that Acts of the legislature complied with constitutional values, by deciding issues on constitutional values and being the voice of those that cannot exercise their rights through the political process. In fact, the very existence of the SMA despite caste violence is testament that the feelings of communities are not sufficient to crush the fundamental rights of citizens, and in that same spirit, the SMA must be reviewed to assess whether its exclusion of queer persons from marriage crushes their fundamental right. In my opinion, the chief justice’s clarification on the court’s duty to review legislation offers an important corrective to the current debate on judicial legitimacy in India. It is indeed incorrect to conclude that electoral democracy supersedes all other constitutional arrangements in the country. It is but one aspect of constitutional democracy. Ultimately, the case may not be good for queers, but it is good for India’s claim as a constitutional country.
This judgment decided the fate of the Telangana Eunuchs Act, 1329 Fasli, a shocking vestige of the Criminal Tribes Act (CTA) era, which I believed had been relegated to the history books. Contrary to appearance, the Telangana Act was not a new Act, legislated after the creation of the State of Telangana in 2014 but a piece of colonial legislation inherited at independence. The Act’s purpose was to register and control eunuchs, in line with the thinking of its parental source that certain tribes were addicted to the commission of habitual offences. The logic was that in caste-ridden India people had been pursuing hereditary professions since time immemorial, weaving, carpentry etc. Naturally, there must be hereditary criminals too.Continue reading
Queer Marriage Hearings- A Very Brief Summary
The Indian Supreme Court heard the queer marriage petitions between the 18th of April and the 9th of May 2023 and it had never been easier to be a part of the hearings. Lawyers huddled around podiums in court room 1 as the oral arguments streamed into the computer for 40 hours over 10 days, wherever you were. In this entry, I recount the most significant legal arguments made in the court.
There are two routes to marriage in India. The first under religious law and the second under secular law. Religious laws typically contemplate that both parties to the marriage belong to the same religion. The secular law, The Special Marriage Act, 1954 (SMA), provides a mechanism for marriage outside the framework of religious laws. It does not define marriage or expressly prohibit queer marriages. All it does is lay down the conditions of a valid marriage of two persons and the minimum ages of the male and the female. The chief question that the petitioners raise is whether the SMA can be interpreted to bring queer marriages within its fold.Continue reading
This month’s blog concerns an appeal from an order of the Kerala High Court concerning a queer/lesbian couple. One of the partners filed a habeas corpus petition in the Kerala High Court alleging that their partner was being illegally detained by the parents who were against the relationship. When the petition came up for hearing in the Kerala High Court on the 13th of January, 2023, that court passed an order directing the District Legal Services Authority to interview the allegedly detained partner at her parent’s house to determine the truth of matter. If the interview were to reveal forceful detention, the court order stated, the detenue would be produced before it, but if no such concerns were revealed, the case would proceed no further. The Kerala court also stated that the detenue must attend counselling at an authorised counselling centre in the following days and had set a date for a next hearing.
This order was appealed in the Supreme Court on the 6th of February where counsel for the petitioner raised concerns about the ability of the detune to offer free and fearless views in the presence of her parents were she to be interviewed in the manner ordained by the High Court. The Supreme Court accordingly ordered that the detenue be produced before the family court in Kerala without any prior interview to provide her an occasion to frankly give her opinion on the nature of her stay at her parent’s. The judicial officers at the family court were ordered to prepare a report based on the interaction and provide it to the Supreme Court for the next hearing which was scheduled for the 17th of February. No further hearing has occurred before the Supreme Court but the court in parting stayed the orders of the Kerala High Court in this matter.
While the lawyers for the petitioners did raise concerns over the fundamental incorrectness of requiring the alleged detenue to undergo counselling, the Supreme Court order is silent on the issue. In the suggestion that the detenue should undergo counselling, there are echoes of the concern that had previously been raised following the 1st order of the S. Sushma decision of the Madras High Court. In that case, the judge, the parties, and the parents had all undergone counselling, at the behest of the judge so that prejudicial unlearning can happen through expert guidance, and grievances can be shared. The judge also arranged a mediation session between the parents and the daughters so that grievances and vulnerabilities can be shared in a potentially safe and open manner (though it must be remembered that this is the idealised version of mediation). The judge was at pains to clarify that the counselling was not meant to require the lesbian couple involved in the case to change themselves, but was to provide a space to challenge heteronormative assumptions for the family member and the judges. The mediation session was arranged in the same spirit. While appreciating the productive potential of the judge’s technique in that case, I had raised a concern that counselling and mediation should not be seen as a sine qua non for availing of the right to choose a partner, the basis of which lies in Article 21 as held in Navtej Johar in particular, and more broadly through a joint operation of the Puttaswamy, NALSA, and Navtej cases. The Supreme Court has not been possessed of a case where it can analyse the lived experiences of queer women and interpret the law accordingly. Habeas corpus and mandamus writs have been the typical ways in which queer couples, particularly queer women/transmen have sought to assert their rights against restrictive family structures and the criminal justice system which prevent them from taking advantage of the full range of rights relating to gender and sexuality. Now for the first time to the best of my knowledge, the Supreme Court has a discreet occasion to observe this interaction, and especially, to clarify the role of counselling in exercise of Article 21 rights to choose a partner.
Note: the couple in this case has been classified as a lesbian couple based on the information available in the Supreme Court judgment wherein the relationship was classified as a same-sex relationship. The Kerala court proceedings being unavailable, further details are unavailable, but the blog will be modified should some new information come to light.
This case is significant not only for transgender persons’ reservation rights post the 2019 enactment but also for settling an important constitutional question: what is the status of un-legislated Supreme Court directions?Continue reading
At last count, there were 9 marriage petitions pending in various Indian High courts. Collectively, these petitions mount a multi-faceted attack on various Indian marriage laws for their failure to provide for queer marriages, either expressly or implicitly. In this blog, I identify the specific laws under challenge and summarise the main grounds of those legal challenges.Continue reading
1. The Petition
This case followed the S. Sushma style of continuing mandamus issued by the court to monitor the progress on the NALSA directives, among other things. The cause of action was the denial of rations to certain portions of the transgender community during COVID. The petition, filed in the High Court of Patna in May 2020, prayed for 25 kgs. of rations for all members of the transgender community, monetary assistance for six months’ rent, a speedy grievance redressal system, and a one-stop facilitation centre. In this blog, I will summarise the proceedings under this petition.Continue reading