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.