After a hard-fought, and at times bitter, campaign to secure same-sex marriage rights, the Supreme Court turned down a clutch of petitions demanding the right. On October 17, in a lengthy opinion, the court said the power to create such rights rested with Parliament. The judgment led to despair among the LGBTIQA+ community but also opened doors to end the widespread discrimination against homosexuality in the public sphere.
On the five-judge Bench, there was unanimity that there was no fundamental right to same-sex marriage. The petitioners and their lawyers had sought to challenge provisions of the Special Marriage Act (SMA), 1954 and ensure a gender-neutral interpretation of this law. That, too, fell through and the court ruled against any changes in SMA and said the right to make those changes lay with Parliament. The minority of the bench—led by Chief Justice of India (CJI) DY Chandrachud and Justice Sanjay Kishan Kaul—sought to give adoption rights to such couples. But this, too, was overruled by a 3:2 majority. Three judges—Justices S Ravindra Bhat, Hima Kohli and PS Narasimha—were against these rights being conceded.
On the government’s side, Attorney-General R Venkataramani and Solicitor General Tushar Mehta argued that the omission of non-heterosexuals from SMA did not invalidate the law. They also argued that it was up to Parliament to enact a special code to regulate non-heterosexual unions after comprehensively engaging with all stakeholders. Importantly, the attorney-general said, “A declaration by this court granting legal recognition to non-heterosexual marriages accompanied with a scheme of rights would be anathema to separation of powers.”
Mehta, in his arguments to the court, said that the state is not under any obligation to grant legal recognition to every type of relationship. The state only recognises relationships when there is a legitimate state interest. He also said that decriminalisation of a sexual offence (Section 377 of the Indian Penal Code that outlawed homosexuality) does not create an obligation for the state to grant legal recognition to such relationships.
After a series of hearings, the Supreme Court agreed with the contentions of the government on granting rights to same-sex couples. This part of the verdict was a unanimous 5:0 decision. There were four separate judgments. The majority judgment— one part of which was penned by Justice S Ravindra Bhat—held: “There are almost intractable difficulties in creating, through judicial diktat, a civil right to marry or a civil union, no less of the kind that is sought by the petitioners in these proceedings.” These judges then went on to list what this would entail and said that an “entirely different code, and a new universe of rights and obligations” would be necessary, something they felt was impossible to secure through a judicial order.
Justice Bhat went on to say that it was one thing for the court to commend the state to eliminate the discrimination faced by non-heterosexual couples from various laws but something entirely different for the court to turn what the petitioners wanted into a right. That was up to the state—government and Parliament—to actuate through appropriate policies and legislation.
There is no fundamental right to marriage and, flowing from that, the right to same-sex marriage. This was a remarkable conclusion, more so as there were heightened expectations that a liberal court would grant this right
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In many ways it was the minority opinion on the Bench that was more interesting. While the majority stuck to the traditional mode of analysis—the interplay of particular circumstance and judicial precedent—it was the minority, especially CJI DY Chandrachud, which engaged in de novo reasoning but came to the same conclusion as the majority. There is no fundamental right to marriage and, flowing from that, the right to same-sex marriage.
This was a remarkable conclusion, more so as there were heightened expectations that a liberal court would grant this right. In his opinion, the CJI noted the two modes by which courts approach the issue of “un-enumerated rights”. These include interpreting existing Fundamental Rights keeping in mind factors necessary to ‘actuate’ them and, second, by interpreting the key ‘values’ of the Indian Constitution, such as liberty, freedom of expression and equality.
The demand for a right to same-sex marriage could not be accommodated by either method of judicial interpretation. The first hint that the Supreme Court would not accede to this demand came when the court noted in its judgment: “Constitutional identity is secured by a gradual process which is characterized by a dialogue between the institutions of governance (such as the legislature, the executive, the courts, and the statutory commissions) and the public over internal and external dissonances. There is external dissonance when there is an apparent conflict between a Constitution’s aspirational ideals and the socio-political reality.”
The court’s reference to “socio-political reality” was a clear hint that same-sex marriage as a right could not be secured by a mere judicial verdict and was a matter for Parliament to decide. The majority opinion stated this clearly on the basis of separation of powers but ultimately the court’s liberal wing, too, came to the same conclusion. Marriage as a legislative subject is listed as Entry 5 on the Concurrent List (Schedule VII of the Constitution). The CJI noted that if the right to marriage were conceded then it would mean that even if Parliament and state legislatures had not used their power to pass laws, they would be obligated to create such a right. This, the court said, was not acceptable.
The same fate befell the challenge to Section 4 of SMA. The law was created to enable persons from different faiths and castes to marry each other in distinction to the community-specific marriage laws. It is a progressive legislation that was passed after Independence to overcome barriers in a conservative country that often led to injustice.
On the issue of SMA, the CJI noted the formidable difficulties in making the necessary changes. There were two options before the court. One, Section 4 of the Act could be struck down and two, the meaning of SMA could be “re-read” in a gender-neutral, same-sex-friendly, manner. Both options were unviable. If Section 4 of SMA were to be struck down, “such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another one.” On the other hand, if the court chose to “re-read” the meaning of the Act, it would be intruding in the policy/ legislative domain. The message was unambiguous: the court would not enter the legislative domain and left any changes to be made in SMA for Parliament to undertake.
The CJI noted that if the right to marriage were conceded then it would mean that even if Parliament and state legislatures had not used their power to pass laws, they would be obligated to create such a right. This, the court said, was not acceptable
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Why did the attempt to get same-sex marriage rights fail? Probably the biggest issue was the poor strategy adopted by the high-profile lawyers championing this cause. One could ask if it would not have been better to lobby for same-sex rights in a particular state. One could pick a progressive state and lobby its legislators and leaders to craft an enabling legislation. Marriage as a subject is listed on the Concurrent List and that allows states to enact their own laws. Once a ‘progressive’ law is passed in a particular state, it opens the doors for building public opinion on the issue. But in the present case, those championing the right thought that this was the most propitious setting for a judicially enabled change. The court is led by a CJI with solid liberal credentials and, overall, the court is considered sympathetic to liberal causes.
This was a miscalculation. Even a cursory reading of the 366- page judgment shows that liberal judges, too, understand the upper limits to which such an issue can be pushed. There was simply no judicial pathway available to create a new Fundamental Right. This fact was not appreciated by the battery of lawyers who pursued the case.
It was not the first time that a set of activist and politically aware lawyers thought they could bypass the political process and secure what they wanted by judicial intervention. In the past, this approach has worked well in a number of areas ranging from environmental protection to getting laws declared unconstitutional. But granting the right to marriage in a conservative society by entirely bypassing the legislature was too much even for a court friendly to liberal causes. The minority opinion’s hint at “socio-political realities” stated as much. Hopefully, this message will not be lost as these rights are pursued in future.
Reliance on American precedent— the 2015 US Supreme Court decision in Obergefell vs Hodges—too, did not work. The apex court clearly noted the great differences between the US and Indian constitutional situations. What the court did not state was the political chaos that ensued in the US in the wake of the Obergefell decision, something that country continues to cope with to date.
The CJI has been criticised for making the right noises but in the end “giving nothing” to the petitioners. That is unfair. As the head of the judiciary, the CJI—of all people—knows the importance of the separation of powers. There have been instances in the past when the court came close to breaching this vital institutional barrier. Perhaps that is one reason why the CJI went out of his way to elaborately address the issue of separation of powers in the judgment. He noted that while the court had wide and extensive powers of judicial review, such powers were ultimately limited to securing the fundamental rights of aggrieved citizens. It could not be used to create a Fundamental Right out of thin air.
The court, both the majority and the minority, were right to direct the government to form a committee led by the Cabinet Secretary to examine the rights that could be granted to the queer community. As a democracy, it is only fitting that such an exercise be undertaken in a careful manner. But the sum and substance of what the court detailed is simple and unambiguous: the power to create the right to same-sex marriage lies with Parliament and state legislatures alone.