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.