PART 1 OF 2

On the 17^th 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:

1. There is no fundamental right to marry.
2. 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.
3. The SMA was not unconstitutional.
4. Some transgender and intersex persons have a right to marry, viz., those in heterosexual relationships.
5. 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.
6. 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.
7. 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.

1. Can a judge declare a fundamental right in one case and then take it back in another?
2. Can the judiciary avoid acting once it has found an Act discriminatory?
3. 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.’[1] 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.

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[1] 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.