In the Supreme Court of Erewhon: The unseen sixth judge renders his verdict in Supriyo v Union of India

“Without equality and fraternity, we are a lost tribe.”

An LGBTQ+ rights activist leaves the premises of the Supreme Court after the verdict on same-sex marriages by the apex court in New Delhi on October 17, 2023. | Photo Credit: SHASHI SHEKHAR KASHYAP

We have assembled here to decide a question which, to my mind, is one of the most important that we will ever be called upon to decide. The question concerns some of us most crucially and fundamentally; it concerns the rest peripherally since their lives are not subject to the outcome of our decision; it concerns all of us because it puts to test if we are really living up to the basic tenets of humaneness and democracy and our fundamental and primordial values.

Thomas Jefferson’s Declaration of Independence of the United States of America in 1776 said: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are life, liberty and the pursuit of happiness”. It goes on to say that it is to secure these rights that governments are instituted among men. Jefferson specified no exceptions, nor has any leader since.

I am the sixth judge today, and it is my unhappy task to survey the demolished wreck of that concept and to speak these words from a deep sadness of mind and spirit. I know that the sadness which envelops me is a fraction of that which has descended upon countless of my fellow Indians. They are my fellows, as indeed they are of my brethren on this Bench, but they can be forgiven if they consider themselves now as social outcasts, thrown out of society and out of the protection of its laws, untouchables and unhelpables under the Constitution of India. For this is a constitutional court which has cast them beyond the pale, with scarce a hope of succour and redemption, to ask like Omar Khayyam did in Rubaiyat:

“They sneer at me for leaning all awry:

What! Did the hand then of the Potter shake?”

None of us sitting in judgment over the world of the petitioners before us has the slightest inkling of the nature of that world. These are persons with a sexual orientation different from the majority of society. Their orientation is towards persons of the same sex. That is the only difference. Beyond that, the feelings they have, the affection, love, care, the wanting to be together and share life with another mirror that which the rest of us aspire to. The love for another, the central love for a soulmate is the core intrinsic basic part of our being. All of us know that, have felt it, experienced it, and it has enriched our lives immeasurably. Our happiness is the derivative of that; shorn of that, life is a lonely tracking through our brief existence in this world. And the ones who feel the loneliness the most are the ones from whom the partner is snatched away. By Death, the Grim Reaper, usually. And occasionally Human Hands, which take away not the partner but the partnership; as terrible, if not worse.

What know we of their world? Nothing. We may have heard about a relative or a friend, but it is a matter that stays within whispers in close family circles, such is the shame that society has fashioned on it. Times are changing fast, but one essential attribute of the judicial process is that its grandmasters are steeped in tradition, convention and precedent; that is how their world works, and their world rules their minds.

We could have innovated, and indeed some of us are known as great innovators, for thinking out of the box and being reform-minded in other areas. We could have thought about whom we could admit into this group, tasked with decision making, persons who have subject matter experience and knowledge. Indeed, any sensible group tasked with decision-making does that, and the more important the decision the greater the need for such persons. Not to decide, but to broaden the mind so that the decision is a better one.

Justice Michael Kirby, former Judge of the High Court of Australia (the apex court in that country) is one of the world’s most celebrated judges and jurists. He served as the President of the New South Wales Court of Appeal and then took his place on the highest court, where he served for 13 years. He built a reputation as a fiercely independent Judge, embracing the term “judicial activist” and using it not as a pejorative, but, as he mentioned in a speech to the Bar Council of India, approving a “kind of judicial activism that is in tune with the deeply felt emotions of ordinary citizens”. He also had a reputation as the “great dissenter”, frequently differing from his colleagues and establishing himself as a man true to his judicial philosophies. He has served as a Commissioner at the UN Human Rights Council. He is revered and lionised the world over, but remains a warm and compassionate human being; I say this because I have had the privilege to spend time with him.

Justice Kirby’s partner is male, by occupation a civil worker. Kirby makes no bones or secrets about this relationship, openly and deliberately introduces it in every talk. They travel together and are a devoted pair. This example, more than scores of writings, has served as an eye-opener to many, converting them from rejection and condemnation to acceptance, then understanding, then oneness in commonality. We could have invited Justice Kirby to join our deliberations at least to some extent, and we could have benefited vastly from that window into a world we know nothing of. But that would have required admitting that we need assistance, and that is a tough call indeed, for it would be to admit that we are not omniscient.

Closer home, we have Saurabh Kirpal, an outstanding senior advocate in the Delhi High Court. The Collegium recommended his name for Judgeship of the Delhi High Court as far back as November 2021 and has reiterated his name on successive occasions but to no avail. The government has blithely ignored his candidature, obviously on account of his sexual orientation, and has instead elevated with extraordinary speed others who on examination may not even qualify as District Judges. The Collegium swallows this poison, and weakly reiterates the name of Kirpal infinitely. Before hearing this case, we should have taken courage into our hands, put the government to the sword, insisted Kirpal’s name be cleared, and had him sworn in. And then asked him to sit with us on this case. There is precedent enough for a Court to ask for special assistance when it hears a matter of whose soil and provenance it is utterly unaware. Far better to proceed with instruction and assistance than to wander in ignorance.

Another shining example is Anand Venkatesh, a Judge of the Madras High Court, appointed in June 2018. He had to hear a case concerning the same community we are dealing with. Two women in a homosexual relationship sought protection from police harassment after their parents filed missing person complaints in a bid to separate them. Judge Venkatesh did an extraordinary thing for a Judge (although perfectly commonplace for ordinary mortals). He admitted frankly that he knew nothing about the matter, that he came with inbuilt prejudices from upbringing and environment, and could not in all honesty or observance of the oath of office perform his task unless he corrected this deficiency. He therefore met with a counsellor in the field and undertook other instruction and interacted with members of the community and activists. And this is what he said: “Ignorance is no justification for normalising any form of discrimination.” He went on, quite poignantly to state: “Till the legislature comes up with an enactment, the LGBTQIA+ community cannot be left in a vulnerable atmosphere where there is no guarantee for their protection and safety.”

He went on to issue a wide range of directions including directing the government to amend the Police Conduct Rules to prohibit harassment of LGBTQIA+ persons, awareness building and sensitising through education, and directing the media to use responsible and sensitive language in their reporting.

I scanned the judgments of my colleagues to find even one mention of this first-rate High Court Judge. Sadly, I found none. Not surprising: he is only a High Court Judge and when do Supreme Court Judges learn anything from them? In the proper order of things, Anand Venkatesh should have sat on our right, and Saurabh Kirpal on our left, or since we are so hierarchy conscious, on seats just below ours. They could have been like the lions on either side of the throne of the Greatest Law Giver of all times, King Solomon himself. That would have been a Bench equipped for the task. Not as good a Bench as one with sister Nagarathna and brother Dhulia, judges of acknowledged social sensitivity, but we can’t ask for the moon in Tilak Marg, can we, and who am I to interfere with the omnipotent power of the Master of the Rolls, who selects and arranges the dice before rolling them out?

We could have asked to meet with members of the community whose future lay in our hands. To understand their lives and difficulties, their feelings, their joys, sorrows, fears and hopes. We could have asked all the lawyers to join us in that exercise, and no doubt many of them, especially from the side of the nay-sayers, would have benefited. After all, as an old adage says, “they who came to scoff shall remain to pray”. That would have been constitutional sensitivity; but the current coinage is constitutional morality.

Let me now deal with the main legal issues that arise in this case.

Article 14: Equality

The first precept of the Constitution is the Doctrine of Equality. Enshrined in Article 14. Highlighted as the first Word of the Preamble. Its meaning is as plain as the Words: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”.

The term “State” includes this Court.

Really, I ask, is anything more necessary for this case?

But perhaps there is and so let me recall another outstanding jurist, Justice Jeevan Reddy. He was one of the great trio of Judges in the 1990s—along with Chief Justice M.N. Venkatachaliah and Chief Justice J.S. Verma. Regrettably, I am not able to locate any after that who come even halfway to the stature of these three.

Justice Jeevan Reddy said in Indira Sawhney (1992): “Equality has been and is the single greatest craving of all human beings at all points of time. It has inspired many a great thinker and philosopher. All religious and political schools of thought swear by it... The Doctrine of equality has many facets. It is a dynamic and evolving concept.”

Quoting Sir Anthony Mason, Chief Justice of Australia, Jeevan Reddy noted: “The law is not an abstract concept removed from the society it serves… Judges, as safe-guarders of the Constitution, must constantly strive to narrow the gap between the ideal of social justice and the reality of social inequality.”

Anything more needed? May I just point out a word here we don’t often recall, and use less? Fraternity. It is the glue that binds us as humans and gives us the feeling of brotherhood, sharing and oneness. It is the source of the milk of human kindness. Justice Reddy said it has a special relevance in the Indian context, since we are a nation of many minorities, each of us a minority in one way or another. Without equality and fraternity, we are a lost tribe.

A LGBTQ community supporter displays a tattoo on his hand which reads “Born this way” at the Supreme Court in New Delhi on October 17, 2023. | Photo Credit: Manish Swarup/AP

Article 21: Right to life

Article 21 as the repository of the Fundamental Right to Life is more precious than any other. In judgment after judgment this Court has held that this right is far, far more than just the right to existence and that it encompasses the right to dignity, the right to a clean environment, education, healthcare, privacy, the right to choose one’s spouse, and so on.

What are these petitioners pleading? They are pleading that their right to life is incomplete without the right to marry a partner of their choice, regardless of sex. A partner whom they love and cherish. With whom they wish to exchange marriage vows of fidelity, till death do them part. They want to bind themselves to the obligations and duties that marriage laws impose on couples, so that social harmony is preserved, and children are better raised. These petitioners are asking to be bound together under and as per law; they are not asking for licence or licentiousness or exemption from law.

I could continue but I have possibly the greatest judicial craftsman of India to speak on my behalf, nay on behalf of these souls cast beyond the pale.

Justice Vivian Bose in KS Srinivasan vs Union of India (1958) said: “I am not advocating sudden and wild departure from doctrines and precedents that have been finally settled but I do contend that we, the highest Court in the land giving final form and shape to the laws of this country, should administer them with the same breadth of vision and understanding of the needs of the times as do the Courts in England. The underlying principles of justice have not changed but the complex pattern of life that is never static requires a fresher outlook and a timely and vigorous moulding of old principles to suit new conditions and ideas and ideals.” (emphasis added)

The International Covenant on Civil and Political Rights recognises the right to marry in Article 23, the Universal Declaration of Human Rights in Article 16 and the European Convention on Human Rights in Article 12. It is a different thing to debate whether the right to marry can extend to same sex couples, but to find no right to marry at all, when UDHR has recognised it since 1948, and ICCPR since 1966 is startling to say the very least.

The Supreme Court recognised the right to choose whom to marry in the Shafin Jahan case (2018). Article 21 has constantly evolved and we have a huge body of judgments waxing eloquent about liberty, freedom, equality, privacy, and constitutional morality trumping social morality. With privacy, dignity, and quality of life qualifying under Article 21, how does the right to marry get left out? Or does only this community get left out?

Preventing same-sex couples from marrying means that you tell them their relationship is lesser than the relationship of a heterosexual couple, and undeserving of the social validity that marriage confers. This is an assault on dignity, and worse.

Separation of powers

My learned brethren are of the view that this requires legislation, and only Parliament can legislate, and we therefore follow the high doctrine of separation of powers and leave it to Parliament.

I am sorry to plainspeak in a judgment, but this is constitutional cynicism. All the judges hearing this case, every lawyer attending, and every citizen anxiously watching, know the government’s stand—it is rigid, claiming that religion and culture will be destroyed if same-sex marriage is allowed. It is reminiscent of the dominant voices of centuries gone by, retrograde and anything but progressive. To leave it to the government when the issue is one of full relief at our hands is rubbing salt in the wound. We eminences can’t get the government to make Saurabh Kirpal a High Court Judge, what hope do these petitioners have to secure the right to marry?

And pray, what more did it need than a simple declaration from us that the right under Article 21, as broad as it is now, includes the right to marry a consenting adult of choice, irrespective of sex as it is irrespective of caste, religion etc? A simple declaration would have carried the day. The interpretation of sections of the Marriage Act would have followed accordingly. It needed no legislation; it only didn’t need obfuscation.

And since when has separation of powers been a mighty obstacle to advancing justice? It wasn’t in Vishaka when this Court boldly fashioned rules to handle sexual harassment in the workplace, leaving it to Parliament to work out legislation while making it amply clear that the Court’s verdict would govern till Parliament did its job. Was the Supreme Court not fashioning legal rules and principles without legislative backing when it established the Basic Structure Doctrine or the Collegium system?

As the great Chief Justice John Marshall of the US Supreme Court said: “We must never forget that it is a Constitution that we are expounding...” What is the power of judicial review for? Why did John Marshall fashion it in Marbury vs Madison, that most celebrated decision? It is not just to correct administrative acts and parliamentary legislations where they sidestep the Constitution, nay, it is a power to advance, secure, and hold foremost the Constitution in governance, and indeed in the actions of men, and to secure its values of human dignity and equality.

When we sit in that function, the Constitution will give us all the power we need. All that is necessary is for us to heed and worship it, and to have the intelligence to fashion the means to secure its true and just ends. But one more thing is needed, and that is often where the problem is. It needs a spine, an unbending spine, because a bent one cannot bear the weight of the Constitution. Bear in mind that the Indian Constitution is a heavy document, and I speak not of its length and physical weight. It is heavy because it carries the hopes and aspirations of 143 crore Indians, and contains the means to secure those hopes and aspirations. It must be applied by men and women imbued with constitutional spirit, who rise to the task with courage intent on sweeping aside all that stands in the way of the Right. They are the true inheritors of that celebrated humanist Justice Krishna Iyer when he said, “Whenever fundamental rights are flouted or legislative protection ignored… this Court’s writ will run, breaking through stone walls and iron bars, to right the wrong.” (Charles Sobhraj vs Superintendent, Tihar Jail) And they must be men with neither skeletons in their cupboards nor expectations of future office. For these are Satan’s tools.

I am not going to labour this judgment with the occasions when we have fashioned law—by mandamus, continuing mandamus, directions, Article 142, and the like. There is no warrant to suddenly do a turnabout and retreat into a small judicial corner, and say that it is the mighty executive and legislature alone which must make law.

If that be so, let us at least be consistent. The Constitution in plain terms vested in the President the power to appoint judges of the High Courts and Supreme Court. Through our judicial decisions in the First Judges Case and Second Judges Case we did a coup d’état and wrested this power from the executive, with a far-fetched interpretation which read “consultation” with the Chief Justice of India to mean “concurrence” of the Chief Justice, thus securing to ourselves the last word. And then we created the wondrous Collegium, the hydra-headed creature that grandly presides over the appointment process of judges, with results good and disastrous. Is there a single law to justify all this? There is not. And when Parliament and all the State Assemblies in one unanimous voice created in 2015 the NJAC, the National Judicial Appointments Commission, to handle these appointments, we, just five of us, sat and solemnly by majority overturned the combined will of Parliament and the State Assemblies. We rejected a body in which we had the majority, preferring instead a coterie, opaque and unaccountable, of just ourselves.

So if it be sauce for the goose, let it be sauce for the gander, and let us be consistent at least for once. If this large section of society does not have the right to choose who it will marry because it is only Parliament which can do the needful, then let us likewise resolve that we too have no right to choose who sits with us.

Waxing eloquent

It has become a feature of our Court to make mighty pronouncements of law in judgments—high sounding, platitudinous, striking the right notes, instilling relief and hope, invoking the right gods. It has also been the practice of some Chief Justices to perform thus on public platforms (one hired a speechwriter, since his skills were deficient, in that and other needed talents). But what good are words when they are not followed by action? It is action that matters, it is relief that matters. Be you ever so mighty in your words, if the action resembles timidity, perhaps it is worse that you spoke in such grand terms. For it makes the contrast so much more obvious. There is an old adage—speak softly, and carry a big stick. Such a man inspires the respect of the good and the fear of others. The reverse—speak mightily but wave a small twig – evokes the opposite reactions.

In this case, too, the minority waxed eloquent in words, a mighty groundswell. But the tide ran out when it came to deliver, and all that came was a tired and timid wave, speaking of civil union, a cop-out, a defeatist concession.

But the majority turned in a veritable tsunami, drowning out this timid wave, proclaiming that even a right to a civil union did not exist for the LGBTQI+ community. The sequitur—that the majesty of the law commands that you shall be trapped inside your body so that you may lawfully unite in marriage only with a person of the opposite sex—is possibly confinement infinitely worse than that behind the bars of the most degraded prison cell.

But the majesty of the law is dictated by the brutality of cold logic. It proceeds thus.

1. No right under Article 21
2. Ergo, no right under marriage laws
3. Ergo, no right to a civil union. 

Remorseless logic.

Except that when we get the principle wrong, it collapses like a house of cards. As Oliver Wendell Holmes said, law is an aid to society and must serve life, not be the captive of logic, a sure pathway to reductio ad absurdum. Remember too what Holmes said about the law in the last line of that immortal paragraph: the law “cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”

Even if you got Article 21 wrong you could still respond to “the felt needs of the times” and “moral and political theories” and interpret the marriage laws as permitting union between members of the same sex. There was nothing there which prevented that. A simple humaneness should have kept us from withholding even civil union.

An LGTBQ activist wearing a rainbow flag wristband gathers with others at the courtyard of India’s Supreme Court in New Delhi on October 17, 2023. | Photo Credit: SAJJAD HUSSAIN/AFP

Public policy

Holmes went on to add “intuitions of public policy, avowed or unconscious” as another guide. What public policy did we serve by denying this right? Let me set out what public policy we could have served by affirming this right instead:

1. There is no certainty about the size of the group represented by the Petitioners. Most members of the community hide their orientation for fear of reprisal. A 2021 survey by IPSOS, the market research organisation, said 3 per cent worldwide identified as homosexual and 4 per cent as bisexual. Even a conservative estimate of 5 per cent in India, a country with 1.4 billion people, would put the LGBTQI+ population at 70 million people. That’s more than the population of most States. 
2. Even if exact figures are not available, as the UK’s Supreme Court in Ghaidan vs Godin-Mendoza stated, “Homosexual relationships can have the exact same qualities of intimacy, stability and interdependence that heterosexual relationships do”
3. The Canadian Psychological Association in 2006, the American Psychological Association in 2017, and a literature review prepared by the Australian Psychological Society—all state that gay and lesbian parents are as fit and capable as heterosexual parents and that their children are as psychologically healthy and well-adjusted as the children of heterosexual couples. 
4. In India, with a large number of orphaned and abandoned children and a huge number of children growing up without families in children’s homes and shelters, providing a safe, loving environment for the child must be a priority. We must be looking to expand adoption rights as much as possible while ensuring children reach safe and capable households. To restrict adoption rights for same sex couples is not just an injustice to same sex couples but to countless children in India. 
5. The thrust of the Juvenile Justice Act 2015, which provided for an adoption framework focused on this aspect—to provide homes to orphaned, abandoned and surrendered children. To exclude same sex couples from this framework is a serious impediment to meeting the goals of the law, and society itself.
6. Instead of comparing how a child grows up with homosexual parents against heterosexual parents, in the Indian context, the options are more likely to be growing up in streets/shelters with no familial relationships against being raised by a same sex couple. The answer should be obvious.
7. The World Bank’s 2014 study: “Economic Cost of Homophobia and Exclusion of LGBT People: A Case Study of India” stated that the economic impact on India could be a loss of up to 32 billion dollars a year (or 1.7 per cent of GDP) annually.

Cost/benefit

Whom has this judgment cost? 70 million people. What deprivations, what denials, what hardship, what quality of life, what dignity, what security, what love, what bond, what life? Does there exist a quantifier for this, save the phrase “ children of a lesser god?”

Whom has this benefited? Which other sections are harmed? Truly, individually harmed in the real sense. None. Obscurantist, ultra-conservative, regressive, rigid, monochrome groups—they are the ones celebrating.

In the ultimate analysis, prejudice has won. The prejudice that the privileged bear towards the other. The lack of understanding or empathy, the discrimination and hate. Haven’t we seen it play out countless times in caste, religion, and other areas? Do we wish to have one more pallbearer for freedom, dignity and equality?

I have quoted bits of Holmes’ famous dictum. Now let me set it out in full. It is the opening of his immortal classic The Common Law.

“The life of the law has not been logic, it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men have a great deal to do more than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”

It happens to judges, more often than they will admit, that when they first sit to hear arguments, they already know what they are going to do. True, the good ones will admit winds of change and may take a slightly different course, and sometimes the really good ones will permit strong cross winds and newer maps to take them to an entirely different place. In this case, I sat with the firm conviction that it was my bounden duty to provide succour to a beleaguered minority against a majority either insensitive or uncaring or ignorant. After all, is not the Court the first, last and often the only place for protection of minorities? What did the great Justice H.R. Khanna tell us?

Justice Khanna in Ahmedabad St Xavier’s College vs State of Gujarat (1975): “The minorities are as much children of the soil as the majority and the approach has been to ensure that nothing should be done as might deprive the minorities of a sense of belonging, a feeling of security, a consciousness of equality.”

I am sanguine in the company of Marshall, Bose, Holmes, Khanna, Krishna Iyer, and Jeevan Reddy J.J.. I could not have asked for more.

The operative portion of this judgment is set out below.

Operative portion

1. The Right to Life under Article 21 of the Constitution of India includes within it the Right to Marry (subject, of course, to reasonable restrictions on the grounds of age and prohibitions on incest.)
2. By virtue of Articles 14, 19, and the Right to Dignity under Article 21, the Right to Marry extends to same-sex couples with the same force as it would apply to heterosexual couples.
3. The Special Marriages Act, in so far as it excludes same-sex couples from the institution of marriage, is unconstitutional. The words “husband”/ “wife” and other gendered terms in the Act shall be read in a gender-neutral manner so as to enable same-sex couples the right to marry.
4. The notice and objection provisions under the Special Marriages Act are declared unconstitutional.
5. Same-sex couples and all couples (whether married or unmarried) shall have a right to adopt under the Juvenile Justice Act, 2015, subject to fulfilling the other conditions contemplated under the Rules framed under the Act.

And with that I rest.

But not before penning a couple of postscripts.

It is my fervent hope that before others demand it of us, we should, promptly and of our own accord, review our decision in Supriyo vs Union of India. It is of the same class as ADM Jabalpur vs Shukla, the infamous case where four judges (two, unfortunately, went on to become Chief Justices) held that we have no rights during the Emergency; only Justice Khanna dissented, an immortal dissent and an immortal man.

That happened during the Emergency and placed shackles on the feet. This one operates without limitation of time and places shackles on life. The sooner it is consigned to the dustbin of history, the better for the Constitution, the Law, the Court, and the people.

Another postscript. A day after the judgment a couple came to the lawns of the Court. Their names are Utkarsh Saxena and Ananya Kotia. They are the Petitioners in one of these cases. Against the backdrop of the Court that denied them relief, they exchanged vows of togetherness. Moving, graceful, touching. They conducted themselves with more dignity than anyone else I have seen recently.

I hope these young men and women whose hopes have been dimmed, if not dashed, by this judgment of ours, plant a tree on this spot. I hope this tree grows quickly with luxuriant foliage and dwarfs the building opposite. And I hope that one day a Constitutional Court will direct the doors facing it to be opened to let in fresh light and air and the view beyond. They will see the tree. And between them and the tree is the statue of Mahatma Gandhi, to mediate between law and society. And hopefully, someone in the Court will recall what the Mahatma said:

“Whenever you are in doubt, or when the self becomes too much with you, apply the following test. Recall the face of the poorest and the weakest man you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him.”

I rest now. Not in peace but with hope. The hope that Justice will ultimately trump Law. It usually does.

Erewhon (anagram of Nowhere) is based on the novel by Samuel Butler set in a fictional country. The court, judge, and judgment in this satire are fictional. Sriram Panchu is real. He is a Senior Advocate at the High Court, Madras. He was assisted by Vikas Muralidharan, Lecturer, Sai University, and Aprameya Manthena, Advocate, Madras High Court.