The Supreme Court judgment in Supriyo vs Union of India was a disappointment to many who hoped that India would take the next step for queer rights. The court declined to grant same-sex couples the right to marry, and upheld both the Special Marriage Act (SMA) and the Foreign Marriage Act (FMA) in their current, exclusionary, form. Marriage equality was denied.
Much of the subsequent discussion has looked backwards and focussed on the judgment and its reasoning. I disagree with the Court’s reasoning and its conclusion. But even though I believe the judgment is a regrettable setback, we need to look forward. The queer community has shown resilience in coming back and surviving the impact of Suresh Kumar Koushal vs Naz Foundation (a 2013 case in which the SC recriminalised homosexuality by reinstating Section 377 of the Indian Penal Code). This resilience and its eventual success give hope and strength to look forward.
The Court was only asked to decide on the constitutionality of the SMA and the FMA. This leaves open two possible avenues: one political, the other judicial.
The political route
The SMA was introduced to rectify a void in the law. It provides inter-religious couples with the ability to marry without the need for religious conversion. It also provides couples of the same religion to marry within a secular framework. The SMA exists in addition to religious personal laws. Just as the SMA supplements religious personal laws, a new law could be devised that supplements existing laws for opposite-sex couples. Alternatively, Parliament could amend the SMA to allow same-sex couples to marry.
A Private Member’s Bill drafted by Derek O’Brien which seeks to achieve marriage equality is currently pending in the Rajya Sabha. The chances of this or any other “Same-Sex Marriage Bill” passed on the central level are low given the strong opposition of the Union Government in the Supreme Court.
But central legislation is not the only way. Marriage laws are in the Concurrent List of the Constitution. State legislatures ruled by opposition parties, some of which supported the petitions, could enact same-sex marriage laws. The Delhi Commission for Protection of Child Rights, a body under the AAP-led government of Delhi intervened in favour of the petitioners. If the AAP is sincerely committed to this position, it could use its majorities in Delhi and Punjab to enact such laws. Both the CPI(M) and CPI have voiced support for the petitioners. As coalition partners in Kerala, they can introduce legislation.
The judicial route
The second route is judicial. The petitioners approached the Court for two reasons. The first reason is symbolic. It is related to the special social significance that the institution of marriage holds in Indian society. They sought the ability to call their partners as husband or wife in the same way as opposite-sex couples can. It is a social reality that partnerships are too often only accepted when they take the form of marriage.
The second reason goes beyond symbolism. The legal status of marriage carries with it numerous legal rights. These include rights of inheritance, rights of life and accident insurance, entitlements in pension schemes, financial rights, rights to decide on medical care, and so on. The Court was cautious precisely because it could not foresee all implications of marriage equality.
In this arena, the judicial route is still open. Both the majority and the minority accepted the argument that discrimination against queer people could attract Article 15 (which prohibits discrimination on grounds of religion, race, caste, sex, or place of birth). All judges thereby reaffirmed the combination of two previous judgments. In Navtej Singh Johar vs Union of India (landmark verdict of the Supreme Court, that decriminalised all consensual relations among adults, including homosexual relations) the Court held that discrimination based on sexual orientation amounts to sex discrimination and is therefore covered under Article 15. In Lt Col Nitisha vs Union of India, the Court held that even facially neutral laws can amount to unlawful indirect discrimination.
Many of the examples mentioned earlier are good candidates for judicial scrutiny in terms of their indirect discrimination against queer people. The fact that the Supreme Court failed to intervene in Supriyo is no bar. What was at stake in Supriyo were the SMA, the FMA, and rights of adoption. None of the other examples were part of the proceedings. The Court has not ruled on them and could not have ruled on them. For the same reason the concerns raised by the Court about unpredictable downstream effects do not apply to more specific litigations.
Consider, for example, a challenge to the limitation of nominating only spouses and not unmarried partners for life insurance. Relying on Navtej Singh Johar, Lt Col Nitisha, and their reaffirmation in Supriyo, a petitioner could argue that this limitation amounts to unlawful indirect discrimination against queer people. If such a case was brought forward, any court would be faced with a more limited task of deciding the constitutionality of life insurance policies alone.
A court could not refuse to decide the case on grounds that doing so would be policymaking. The argument is squarely a constitutional and legal argument. Furthermore, the argument does not lead to a vast automatic domino. The strategy would be one of incrementalism. Litigations would take one step at a time instead of a revolutionary step all at once.
It remains to be seen how far courts will be willing to grant cases of this kind. But the strategy would be the same. It would be to challenge the special rights granted to married couples on grounds that the premium attached to marriage unfairly and unlawfully impacts those whom the Supreme Court said could not marry. If successful, then such litigation would reduce the legal significance of the institution of marriage.
The future of marriage
The irony might then be this: Supriyo was hailed by conservatives for protecting the institution of marriage. An unusual alliance emerged between—on the one side—leaders from the RSS and BJP, and, on the other side, the Muslim Personal Law Board and Asaduddin Owaisi. What united them was their social conservatism and belief that marriage is limited to unions between men and women. They believed that the vindication of this view by the Supreme Court strengthened the institution of marriage.
But the judgment contains kernels of a future in which marriage is less important. There are two reasons for this. First, the Court held that there is no fundamental right to marry under Article 21. It held that the right to private life protects individuals in romantic relationships but that it does not give them the right to have their relationship recognised by law. The paradigm of the relationship that is protected by Article 21 is, therefore, the unmarried, cohabitating couple. The legal status of this relationship is irrelevant for the protections granted under Article 21. This position is normally associated with radical feminists who seek to diminish the institution of marriage, not safeguard it.
The point can be seen in another way. If there is no fundamental right to marry, then it would be permissible for the state to shift to a marriage-free state. Since the legal institution of marriage is not protected by Article 21, the state could abolish it. This possibility is a direct implication of Supriyo and hardly a sign of a judgment which strengthens the institution of marriage.
The second reason is the possibility of incremental litigation which reduces the legal significance of marriage. This strategy would retain the institution of marriage, but it would reduce the difference between marriages and non-marital relationships. This path is left often by Supriyo. If taken, it would be the result of a judgment which forces us to choose between equality for the queer community and the significance of marriage. The petitioners in Supriyo wanted both. The Supreme Court denied this. Unless politics acts, the courts will be forced to choose.
Bastian Steuwer is an Assistant Professor of Politics at Ashoka University.