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.
1. The Equality Argument
The petitioners seek a declaration of a fundamental right to marry for queer persons. They argued that the advance of the law through Supreme Court judgments has recognized not only that all people are entitled to the protection of their fundamental rights regardless of sexual orientation and gender identity, but also that sexual orientation and gender identity are fundamental rights in and off themselves. In other words, the equal citizenship of queers with non-queers was now beyond question. If the fundamental right to marriage was available to heterosexual persons as recognized in Shakti Vahini and Shafin Jahan cases then it should be available to queer persons too, they argued. Denial of the right based on nothing but the ascriptive characteristic of sexual orientation and gender identity was not constitutionally permissible after Navtej. They argued therefore, that the SMA must be read in a manner that includes queer marriages within its fold. Failure to do so would be constitutionally impermissible discrimination.
This equality argument was resisted by the respondents, the Union of India and certain other private interests, on essentially two grounds: 1. that under-inclusion had never been a recognized ground for invalidating a statute unless it is shown that under-inclusion is discriminatory; and 2. the the sexual union of queer persons no matter how stable and long lasting simply does not have the same societal recognition as a heterosexual marriage. These two unions are therefore not on an equal footing and cannot demand equal treatment.
A. Under-inclusion Does not Render an Act Unconstitutional
Explaining the first ground, the respondents showed that the SMA was enacted with the express purpose of providing for inter-faith and inter-caste heterosexual marriages because religious laws did not provide for them, going so far as to prohibit them. They argued, and this is well-settled, that it is the legislative prerogative to decide which social problem to tackle and how to tackle it. Failure to provide a comprehensive marriage law that covers all possible marriages imaginable will therefore by itself not amount to discrimination. But, does the SMA just provide a way for marriage outside religious laws, or does it provide the only possible means to marry outside religious laws? In my view, that is the question the courts must really decide. If it is the latter, and there is a fundamental right to marry extendable to queer persons as the petitioners argue, then the exclusion of queer persons from the SMA is not a case of under-inclusion but discrimination. Because they cannot get married any other way.
B. The Unequal Classes Argument
The respondents argued that queer unions simply do not have the societal recognition of a heterosexual marriage. Can they therefore be equated? This argument cleverly obfuscates the legal and societal hurdles that have thus far prevented the legitimization of queer relationships, and seeks to use past discrimination as a rationale for present and future discrimination by refusing to course-correct. This logic is constitutionally suspect and must be treated with caution by the court.
The petitioners argued that the status of marriage will go a long way to dispel the stigma that remains attached to queer people despite decriminalization of sexual relations between them. Marriage is not only a path to legitimacy and respect, it is a source of dignity, blossoming, fulfillment, and self-respect. It offers social protection from violent natal families. It is essential to forming family life. Further, practical day-day arrangements of pension, insurance, healthcare etc., remain difficult to procure because marriage is not available to queer couples.
2. The Legitimate State Interest Argument
This is an interesting argument full of radical potential. The respondents argue that marriage is a social institution and properly should not be the State’s business, as was the case until the 1950s. At this time, a host of marriage laws were enacted because the State was interested in regulating certain incidents of marriage, such as childcare, divorce, inheritance, maintenance, etc. Those laws did not create marriage, merely recognized them for legal purposes. Regulation in fact brought about a curtailment of rights—for example, multiple marriages were outlawed. The rationale behind those laws was to create uniformity and provide a more equal treatment of women and children. Portrayed in this way, the argument suggests that queer folks are freer than non-queers in marriages. Their freedoms are unhindered, and they can organize their lives as they wish. This would have been true if, forgetting for a moment the stigma with queer coupling, had not the exercise of various rights been linked to marriage. One example suffices. For example, a queer couple cannot adopt because the adoption guidelines require the subsistence of a valid marriage. As long as this couple cannot marry they cannot adopt.
3. The Limits of Interpretation Argument
The petitioners argue that it is open to the court to ‘read-in’/’read-up’ a statute in a way that saves it from unconstitutionality, especially as there is no express prohibition on excluding queer persons. Reading the SMA in this way is within the institutional capacity of the judiciary. Indeed it is one of its unique powers, they argue. It is not judicial legislation which would arise in situations where large swathes of legislation were being written into the Act, akin to stitching a whole cloth. Therefore, the argument is that although the SMA does not provide specifically for queer marriages, and nor was this the legislative intention or purpose at the time of enactment, it can and must be read in a manner that is constitutionally permissible. It would be constitutionally impermissible to read the SMA in a manner that creates two classes of unions—queer and non-queer because the equal moral worth of queer persons had been clearly articulated in Navtej. The other option of course is to find the SMA void for unconstitutionality although the petitioners do not make this prayer in any seriousness.
The respondents argue that any interpretation of statute which enlarges legislative policy in a way that is unintended is constitutionally impermissible. They elaborate that the grain of the SMA was to provide for inter-faith and inter-caste marriages between heterosexual couples. This was not merely because queer couples were inconceivable at the time, but because, as the solicitor general showed through parliamentary debates, the legislators were aware of homosexuality but chose to limit SMA to heterosexual marriages only.
The most compelling argument regarding interpreting the SMA in the way proposed by the petitioners, viz., to read the gendered provisions of the Act as gender neutral (spouse instead of husband/wife) is that it will result in the Act being applied in one way to heterosexuals and another way to queer persons. This has no constitutional precedent. An example is perhaps found in the divorce provisions of the SMA. The divorce provisions provides certain special grounds to wives – for example, rape by the husband. In a queer marriage, the union argues, it is not clear who the ‘wife’ will be. Will both parties be wives; will none be wife? In either case, such an interpretation would necessarily mean that the grounds of divorce available to a straight couple would be different from the grounds available to a queer couple. The problem would change form but remain unresolved if ‘wife’ were replaced by ‘person.’ That would result in a situation where the SMA recognizes that rape can be perpetrated by anyone whereas the criminal code (IPC) defines rape as an offense committed by men. This will require changing the definition of the crime in a significant way. This is not something judicial interpretation is empowered to do—this must necessarily be done by legislation, if felt necessary.
4. The Workability Argument
The argument here is that the SMA does not exist in vacuum. Marriages created under the SMA give rise to rights and liabilities outside the SMA. For instance, if a Hindu husband dies without a will, his property devolves in the first instance to his wife and kids, as per the Hindu Succession Act, 1956. In the case of a queer marriage, there may not be a wife. How then would the property devolve? The court will necessarily have to tamper with (interpret/modify) words in other legislation, the union argues, which is beyond the scope of the case—the court is avowedly looking only at the SMA.
The court has reserved judgment which is expected in July/August. Meanwhile, the union has committed to creating a committee headed by the cabinet secretary which will examine various circulars relating to day-day affairs such as gratuity, pensions, insurance, bank accounts, healthcare etc., which are predicated on marriage and seek to equalize access to them regardless of marital status and sexual orientation. It will be interesting to see the revised circulars. In my opinion, this exercise if carried out properly has great potential to recognize not only monogamous same-sex/queer partnerships but also also unconventional forms of kinship, including relationships not premised on sexual and romantic love.
 Progression can be traced through reading of NALSA (2014 SC), Puttaswamy (2017 SC) Navtej (2018 SC), Shakti Vahini (2018 SC), and Shafin Jahan (2018 SC), Laxmibai Chandaragi B. (2021 SC), Dipika Singh v CAT (2022 SC).
 DS Nakara (1982 SC), Association of Old Settlers of Sikkim (SC 2023).
 Ghaidan v Godin-Mendoza House of Lords 2004; National Gay and Lesbian Association (South Africa).
Note- the November post summarized marriage petitions pending in various High Courts. Those petitions were tagged with the Supreme Court petitions and will be disposed together.