Category Archives: marriage

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Supriyo@ Supriya Chakraborty & Anr v Union of India 2023 INSC 920 (The Queer Marriage Case)

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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:

  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.

[1] Para 21 of the concurring judgment of Justice Chandrachud in Shafin Jahan.

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Supriyo@ Supriya Chakraborty & Anr v Union of India 2023 INSC 920 (The Queer Marriage Case)

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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.  

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A More Equal Future

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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.

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Marriage Petitions

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I. Introduction

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.

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Arunkumar and Sreeja v. The State WP(MD) No. 4125 of 2019

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On the 22nd of April, 2019, a single judge bench of the Madras High Court directed the State to issue a marriage certificate to a man and transgender woman. 1. This is the first case to recognize the right to marriage of a transgender person. Importantly, the court did not require the transgender woman to have undergone SRS to be recognized as a woman. 2. The case also furthered the legal jurisprudence regarding intersex persons and directed the State government to issue a notification to ban normalizing surgeries for intersex babies, giving it eight weeks to comply with this direction. This blog will focus on the two above-mentioned features of the case.

Facts of the Case

Mr. Arunkumar married Ms. Sreeja in a temple in Tuticorin (Tamil Nadu). Arunkumar was assigned male at birth whereas Sreeja was born with an intersex condition. While she was assigned gender female at birth at school she was registered as male and had a male name. In her Aadhar card, her identity was displayed as transgender. Arguably, her socially perceived gender was that of male and that is why even though her birth certificate records her gender as female, when she adopts a female name and marries a man the issue becomes one of transgender marriage and not marriage between two persons of different sexes. In the case. The marriage was performed according to Hindu rites and customs and certified as validly performed by the administrative officer of the village. However, the temple authorities declined to vouch for the marriage. This fact raises some questions. Whose authorization: the administrative officer’s or the temple authorities, is necessary to claim that a marriage is performed as per Hindu rites and customs. This question is not raised in the case but given that the judgment does not question the validity of the marriage on this count, arguably, a marriage can be said to performed according to Hindu rites and customs even if just the administrative officer (not usually an authority on religious rites) certifies it so in opposition to the temple authorities. Moving ahead from this digression, the couple was required to register their marriage as per Rule 5(1)(a) of the Tamil Nadu Registration of Marriage Rules. When they approached the Joint Registrar for the same, he opposed to register it. The couple met with a similar refusal when they appealed his decision before the Registrar of the District. They challenged the decision of the Registrar in a Writ of Mandamus filed in the Madras High Court.

In the High Court, the counsel for the State of Tamil Nadu defended the Registrars’ refusal on two grounds:

  1. As per the Tamil Nadu Registration of Marriage Act, 2009, a Registrar could refuse to register a marriage if they were satisfied that the marriage was not performed under the personal law, custom or tradition as the claim may be. In the present case, the State argued that the temple authorities did not certify the marriage, providing valid grounds for refusal. As mentioned before, the judgment did not focus on this contention at all. However, if similar registration Acts exist in other States as well then in the future, one may reasonably expect that this may become a ground of contention in a case. In this situation, the court will have to turn its attention to whether this activity of the temple can be subject to constitutional scrutiny, and if so whether the criteria that temples have reserved for issuing such certificates are constitutional.
  2. Section 5 of the Hindu Marriage Act, 1955 lays down the conditions for the solemnization of a Hindu marriage. Although the Section does not state that a valid marriage can be entered into only between a man and a woman, the Section has been legally understood to imply this. The Section uses the word “bridegroom” and “bride” only to state the minimum age that these persons must be to enter into marriage but does not state that they must marry one another. However, the word “bride” is not defined in the Act. The counsel for the State argued that a bride is a “woman on her wedding day” [as defined in the Oxford Advanced Learner’s Dictionary of Current English]. As Sreeja was not a woman but a transgender person, she could not be a bride under the Act, and therefore the marriage was not solemnized as per the terms of the Act.

Reasoning of the Court

The reasoning of the court was prefaced by recapping certain propositions of law recognized in the NALSA case:

  1. Fundamental Right to Gender Identity: Ignoring the first contention, the court focussed on the second one and refused to accept it in the light of the NALSA decision. The NALSA decision had stated that transgender persons have a fundamental right to decide their gender identity as either man, woman or third gender. Incidentally, the court also found support for this legal proposition in Hindu tradition and cited the story of Aravan and Shikhandi and modern neuroscience of Prof. V.S. Ramachandran which validates the argument of internal and external gender mismatch experienced by the transgender population.
  2. Right to Equality: the court also referenced NALSA to reiterate that the fundamental right to equality was available to “all persons” and not just men and women. Therefore, Article 14 (equality) finds discrimination on the basis of gender identity unconstitutional.
  3. Dignity and Privacy: the court also found, following NALSA, that the gender identity discrimination offends the fundamental right to dignity and privacy protected under Article 21.
  4. Fundamental Right to Gender Expression: the court also reiterated NALSA in saying that gender expression and presentation are protected under Article 19(1(a) of the constitution, and the State could not “prohibit, restrict or interfere” with a transgender person’s expression of the same [NALSA, para 72].

Thereafter, the decision of the court was based on two proposition of law, and and one guiding principle of interpretation.

  1. 1. Proposition of law: The right to marry: Accordingly, the court ruled that the construction of the word “bride” could not be static and had to be interpreted as per the current conditions. Accordingly, given that transgender persons have the fundamental right to a self-identified gender, “bride” under S. 5 of the Hindu Marriage Act, 1955 should be read to mean not just a person assigned female at birth, but also a transgender or intersex person who identifies as female. It found that Article 16 of the Universal Declaration of Human Rights (UDHR) grants men and women the right to marry, and in a recent Supreme Court case [Shafin Jahan 2018], the Supreme Court had held the right to marry as a fundamental right protected under Article 21. The court also found support for this proposition in the NALSA judgment itself which had predicted that civil right like marriage could be made available to the transgender population once their gender identity is given due recognition in law.
  2. Proposition of law: the freedom of religion: the court found that denying two practicing Hindus (the petitioners) to marry under Hindu law was a violation of their freedom of religion because it prohibited
  3. Guiding Principle of Interpretation: the court also noted that the constitution is an enabling document and judged on its standards, it “would be absurd” to deny to the transgender population rights already available to the mainstream.

Jurisprudence Regarding Intersex Persons

The court started by defining intersex persons partially correctly when it noted that intersex children are “children who are born with genitalia that belongs to neither category” [para 16]. This is not correct. While some intersex persons may have ambiguous genitalia, some intersex persons may have the external genitalia associated with one sex but they might have internal sexual organs not typically associated with that sex. For example, a person may be assigned gender male at birth because he possess external sexual characteristics of a typical male but they may have a uterus. Alternatively, they might have a chromosomal make up different  from the one associated with males (XY) and females (XX). However, importantly, the court did note that the parents and the doctors perform corrective surgeries on such children when they are born found such surgeries in violation of NALSA (which prohibited SRS for gender recognition) and also Article 39 of the Indian constitution which directs the State to give children the opportunities and facilities to develop in a health manner in conditions of freedom and dignity. It also stated that intersex children are entitled to stay with their families and the onus fell on the government to launch programmes to address parental shame upon the birth of an intersex child.