To marry or not to marry: An analysis of Indian Supreme Court's same-sex marriage judgment

At the outset, I endorse a dilemma frequently hinged with the Indian Constitution. Where do we position the constitutional discourse? Which strata of society is appropriately placed to nurture and cherish the blossoming of constitutional deliberations? Should we place it in the middle-class discourses, fighting their daily life to make a living for themselves, with a certain (or even more) amount of conservatism lurking in their domestic lives? Or should it be placed with the marginalised sections of the society, for whom even a two-time meal is a luxury? Or is there really an urban elite better positioned to comprehend and deliberate on the good or bad of society? Where do we really set the constitutional discourse? It is an important question to answer, as it is the outlook of the constitution which determines the destiny it will lead to.

In the Supriya Chakraborty vs Union of India pertaining to same-sex marriage rights of the queer group, the honourable Supreme Court, at the outset, has done a remarkable job by dealing with a sensitive and intricate question about individual and collective rights, which to a large extent has been unanswered or even not mentioned in the Parliamentary discourses. This is the ethical role we imagined the court of law to play, to provide voices to the most marginalised and unheard voices which are not able to make a mark in the parliamentary chambers due to paucity of representation, either due to lack of sufficient numeric strength in the constituencies or the mere lack of apathy from the representative to their voices. However, in such matters of sensitivity, polyvocality of opinions (running into hundreds of pages) might not go well with many, having four opinions in a bench of five judges, does bring some elements of uncertainty, but it surely goes well with the argumentation(al) temperament of the constitution.

The credit must go to the Master of Roster, Chief Justice of India DY Chandrachud, for the formulation of such a bench which was open to such vivid and diverse argumentation in the course of a hearing.

In the present case, an earnest effort has been made by the court to recognise as many rights as possible within their jurisdictional arena. Special mention needs to be given to Justice Chandrachud for his dissenting opinion, wherein the judge has attempted to give a marriage-like status to the civil union of two individuals.

Justice Chandrachud emphasises the functional/operational aspect of Article 19 (1) (c), (e), (a), 21 & 15 (1) of the Indian Constitution. The freedom to settle and the freedom to create a union cannot fully be operationalised till the time there is ‘State & Non-State Violence’ against individuals for their sexual orientation and gender identity.

Justice Chandrachud accepts the fact that marriage as an institution, and as recognised and regulated by the state, cannot be made a fundamental right. Neither will it be possible for the Supreme Court under the present legal matrix to recognise the marriage rights of individuals belonging to queer groups. In simple fact, the relevant law under which this right could have been considered was the Special Marriage Act, of 1954.

Justice Chandrachud emphasises that the provision of the Act is under-worded and thus indirectly discriminates against the queer group, building his arguments in line with Navtej Singh Johar (2018), Shakti Vahani (2018), Nalsa (2014) and K.S. Puttaswamy-I (2018). Emphasising more on individual liberty, dignity and the choices they make. However, he also agrees, that the Separation of Power being a part of the Indian Constitution, it is for the legislative deliberations to frame laws and policy on the matter. In an elaborative judgment, Justice Chandrachud has laid down an extensive direction for the Governments for safeguarding the civil union between individuals from queer groups, right from sensitisation of the people about LGBTQ rights, to ordering the criteria (such as joint bank account, ration card etc.) that the Committee should take into consideration while deliberating on the rights of the queer group. It can briefly be said that Justice Chandrachud has made an all-out attempt to provide marriage-like status to the civil union of the individuals from the queer group, even adoption rights.

The approach of Justice Chandrachud can be summarised as ‘rights from wrong approach’, an approach propounded by Allan Dershowitz. It is a commonly referred approach under Comparative Constitutional Law. It is believed that every right propounded is based on a past injustice. An example could be Germany. The modern German Constitution is pro-fundamental rights and human rights-centric. Germany saw a bad past of the holocaust, and it comes as a lesson for them to create a more stable society in line with human dignity. Throughout his opinion, Justice Chandrachud has emphasised the marginalisation faced by the queer group due to the insensitivity of the state and the non-state actors. Granting them equal status in the form of a civil union (and all the benefits attached to it) was a way to compensate them for the wrongs committed in the past.

Also read | Same-sex marriage: Former SC judge Indu Malhotra explains why legislation is essential in India

However, the majority opinion led by Justice Ravindra Bhat (concurred by Justice Hima Kohli and a separate concurring opinion of Justice PS Narashima) did not endorse the opinion of Justice Chandrachud and was practically correct. Knowing that the Separation of Power is a part of the Basic Structure, it is not prudent, legally or even ethically, for the Court of Law to create an institution parallel to marriage. Justice Bhat categorically emphasises that a right does not always create a positive obligation to the extent that the Court can lay down the law for it. Merely having a right to civil union does not obligate the state to create the socio-legal groundwork for facilitating the right. The Court surely cannot do this work, it is upon the executive deliberation to fixate an appropriate time. However, it is interesting to mention that the majority opinion does concur with the dissenting that the ‘Right to Marriage’ cannot be unqualified.

Also read | Supreme Court's verdict 'quashed the hopes of millions', say LGBT rights activists

From a jurisprudential aspect, the judgement needs to be analysed from three perspectives: legal, moral and sociological (a reference to this can be found in the book of Oxford Handbook of Comparative Constitutional Law: Chapter 39). The legal aspect deals with the legality of the judgement, on that front this judgment is completely sound, following the principles of the Indian Constitution to the point. However, on a moral and sociological front this judgement might be passing through grace marks. The moral aspect of the judgment raises questions regarding the ethical responsibility of the Court, as in, why does a Court exist?

Prof Rohit De (author of the book A People’s Constitution) says in a democratic country, the Court plays a major role in being a forum of representation for unheard voices. The whole concept of Judicial Review originated from this ethical necessity of an independent arbiter, who will arbitrate the rights of the individual against the State. On this front, the judgment has partially succeeded, as already mentioned earlier, at least the judgment brought the discourse regarding queer group and their rights to the forefront in the public domain, wherein it will be discussed in every household of the country. Though the judgment has not given the desired result, yet a discourse of the unheard will go a long way in creating a route. As Prof. Yogesh Pratap Singh (author of the book Judicial Dissent and Indian Supreme Court) says, possibly a dissenting opinion at present will gain traction in the near future and a jurisprudence for tomorrow.

On the sociological aspect, the question is whether the judgement is well-accepted or not, and when we talk about acceptance of judgement, we do not refer to the mass population of India giving their acceptance to the judgement. We refer to the stakeholders of judgement (the mention of such arguments on legal, moral and political legitimacy can be seen in the Book Democracy and Constitutionalism in India), the stakeholders under this judgement will be the queer community and the legal diaspora. There are mixed reviews which have come for the judgement, most of the members of queer groups are disheartened. However, it is interesting to see that this has been portrayed as a failure of the Court to not recognise marital rights, several of the prime legal websites in their snippets have lambasted the judiciary for their failure to uphold the marital rights of queer groups. But that is not the truth, the judiciary has done a remarkable job to the extent it was legally possible. The sociological acceptance of the judgement depends on the public perception created by the media channels, and legal news platforms, it seems they have failed to portray the real picture.

(Disclaimer: The views of the writer do not represent the views of WION or ZMCL. Nor does WION or ZMCL endorse the views of the writer.) 

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