A day after the pronouncement of a 3:2 judgment in Supriyo @ Supriya Chakraborty vs Union of India by the five-judge Constitution bench of the Supreme Court, declining legal recognition of the right to marry for queer couples, on October 18, the senior-most puisne judge of the Supreme Court, Justice S.K. Kaul, while hearing another matter, observed thus: “Dissent is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”
This remark, first attributed to the great American judge, Charles Evans Hughes, (11th Chief Justice of the U.S. 1930-41) has been the justification of all minority opinions expressed by Judges of Higher Judiciary.
Justice Kaul, who was one of the two among the minority Judges (the other being the Chief Justice of India, D.Y. Chandrachud) in the Supriyo (otherwise known as the marriage equality case) had the occasion to remind this to the counsel in the case dealing with challenges to the Court’s previous judgment (widely perceived as erroneous) upholding the Prevention of Money Laundering Act (PMLA), that there was nothing unusual in the Court revisiting its own judgments to correct errors of law and interpretation.
Coming close on the heels of his own dissent in the Supriyo verdict, however, the significance of Justice Kaul’s reference to what Justice Charles Evans Hughes observed almost a century ago could not be missed.
The members of the queer community in India, no doubt, found the 3:2 verdict in Supriyo on October 17 deeply disappointing. But they found the minority Judges in Supriyo equally complicit in judicial abdication of their fundamental rights, and an opportunity to end their discrimination in the hands of the majoritarian character of our institutions and policy-making. For the queer activists, the struggle to make the judgment of the two dissenting Judges a reality would only constitute half their battle, for unless the basis of all the four separate judgments handed down by the five Judges is turned upside down, they cannot achieve equality with the heterogeneous couples on the question of marriage and its legal consequences.
During the hearing of the case, it was apparent that the petitioners prayed for a mere declaration from the Court that they are entitled to claim their right to marriage equality, as they knew that the Court could not be expected to fulfil the nitty-gritty of enforcing the right in this case, as it would require many smaller legal battles to be fought by aggrieved citizens in the days to come.
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Just as in K.S. Puttaswamy vs Union of India, (2017) when the Supreme Court’s nine-judge bench declared that the right to privacy is a fundamental right, leaving the question of how it is to be enforced in individual cases, the petitioners in Supriyo pleaded with the bench not to get bogged down in the nitty-gritty but leave the question of enforcing their right to future benches. But all the five Judges in Supriyo appear to have missed that opportunity and concluded that the time for declaring that right has not yet arrived.
A fundamental issue
Take the question of marriage being recognised as a fundamental right, which even the minority Judges, CJI D.Y. Chandrachud, and Justice S.K. Kaul declined. The petitioners only wanted the precedent set in the earlier judgments, such as Shafin Jahan v Asokan K.M. (2018) and Shakti Vahini v Union of India (2018), to be followed. No doubt, both cases dealt with heterosexual couples’ right to marry. But Chief Justice Chandrachud’s judgment held that these two cases dealt with situations where state and non-state actors prevented a couple, which was otherwise entitled to marry, from marrying. That was precisely the point. The same-sex couple claimed that they too were entitled to marry, but the state unjustly prevented them from marrying, citing the absence of legal recognition.
A LGBTQ community supporter displays a tattoo on his hand which reads “Born this way” near the Supreme Court in New Delhi on October 17, 2023. | Photo Credit: Manish Swarup
Justice S. Ravindra Bhat, who wrote for the majority, was close to the reality when he wrote that while the constitution does not expressly recognise a right to marry, the right exists “independently of the state,” that is, the source of this right must be found in society, and not in law. In a sense, this elevates the right to marry to a natural human right. But sadly Justice Bhat did not take his reasoning to its logical culmination. Instead, he held that if there is a fundamental right to marry, it cannot be operationalised unless it is brought to the level of Articles 15 and 16, by creating conditions to further its goals and by imposing positive obligations on the state to do so. As a result, he concluded that the right to marry is not an enforceable right. Justice P.S. Narasimha, part of the majority, was just willing to call it a “fundamental freedom” and not a right.
The minority Judges sought to overcome the absence of legal recognition of the queer couples’ right to marry by articulating their right to form a “civil union” regardless of sexual orientation and gender under Articles 19 and 21. The majority Judges agreed that queer couples have the right to cohabit and live together as an integral part of choice. But they disagreed that the Court could direct the State to provide a separate legal regime—parallel to that of marriage between heterosexual couples—laying down the conditions of a valid union, setting eligibility, age, restrictions, divorce, alimony, and a bouquet of other rights that are ancillary to marriage.
The petitioners were hopeful that the court could read up the Special Marriage Act (SMA) to recognise their right to marry. On this, however, the minority Judges, as the majority Judges, were faced with hypothetical problems. For the CJI, declaring Section 4 of the SMA—dealing with conditions relating to the solemnisation of special marriages—unconstitutional would diminish the purpose of “progressive legislation,” as it was enacted to bolster interfaith and inter-caste relationships. To Justice Kaul, however, the intent of the SMA to facilitate inter-faith marriages has no “nexus” with the exclusion of non-heterosexual couples.
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The petitioners’ plea to adopt a “purposive” interpretation of the law and insert gender-neutral words to include non-heterosexual couples within the ambit of SMA failed to persuade the majority as well as the minority Judges who preferred not to violate the doctrine of separation of powers.
According to the CJI, adoption Regulations discriminate against unmarried couples, and treating marriage as a yardstick to classify stable couples who alone can ensure the best interest of the child does not make sense. To Justice Bhat, however, the law is designed keeping in mind the best interest of the child to protect it from instances where the marriage has broken down. To fill the legal void leading to deprivation of protection to queer couples and their adopted children (adopted by an individual spouse), Justice Bhat has recommended that the State should enable the full gamut of rights to them.
One wonders, however, if a direction can be issued to the State to perform a positive obligation in the case of queer parents and their adopted children, why did Justice Bhat shy away from a similar direction in the case of “civil union,” proposed by the minority Judges?
The five-judge bench completed its “judicial abdication” by entrusting the Government-promised “high-powered committee” chaired by the Cabinet Secretary to set out entitlements and rights for queer persons, by recommending consideration of some specific grievances of the community. Even as the Union Government has the last laugh in this case, the question of whether the Supreme Court failed to exercise its counter-majoritarian role to render justice to a minuscule minority, which is entitled to Constitutional protection, remains.
V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues for news portals.
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