Equality Marriage Verdict: A Damper on the Century old Social Movement

Mohan V. Katarki, Senior Advocate

26 Oct 2023 7:58 AM GMT

  • Equality Marriage Verdict: A Damper on the Century old Social Movement

    The Indian Supreme Court passionately decriminalized the sex by same-sex partners in the Navtej Singh Johar Case and it upheld the constitutional rights of Non-heterosexuals or Queer or lesbians, gay bisexuals and transgender (LGBT) to cohabit as part of their privacy rights guaranteed by the Constitution of India. However, the apex court quietly backed out in the Marriage Equality Case...

    The Indian Supreme Court passionately decriminalized the sex by same-sex partners in the Navtej Singh Johar Case and it upheld the constitutional rights of Non-heterosexuals or Queer or lesbians, gay bisexuals and transgender (LGBT) to cohabit as part of their privacy rights guaranteed by the Constitution of India. However, the apex court quietly backed out in the Marriage Equality Case in Supriyo Case[1] giving short shrift to the demand of LGBTs for a mere stamp of recognition for their marriage or civil union. The legal incongruousness has evoked intense debate. Why shouldn’t it be?

    A bunch of Writ Petitions and Transfer Petitions filed by the LGBTs were considered by the Constitution bench of five judges to decide on the seminal issues. The main relief demanded by the petitioners was the grant of recognition for the marriage of same-sex couples under the provisions of the Special Marriage Act, 1954 (SMA of 1954)[2] on the premise that their freedom to marry and form a civil union is entitled to be recognized and registered. The relief was crucial for LGBTs since, certain bundles of rights and obligations in succession, etc flow from acquiring the status of marriage to their civil union. The bench delivering its verdict on 17th October 2023 disposed of the petitions, after rejecting the main demand to the disappointment of hundreds of LGBTs across the nations and their friends around the world. The verdict puts a damper on the social movement that began way back in 1897 in Berlin by the Scientific Humanitarian Committee demanding decriminalization and recognition of marriage.

    The LGBT's charge of illegality in refusal to register their civil union as marriage rested on the interpretation that the provision of SMA of 1954 as grafted by the legislature namely Parliament is gender neutral. Therefore, the words “person” and “party” in Sec 4 shouldn’t be interpreted as marriage only between heterosexuals or he and she having different sex, but it should be interpreted as encompassing even the civil union between two individuals of the same sex. The overly semantic interpretation of the statute precluded all five judges from accepting this plea[3]. The constitutionally guaranteed fundamental rights to civil union of LGBTs are sent to cold storage. Did the SC err by overly relying on semantics and ignoring the accepted approach of interpreting the legislation to promote fundamental rights?

    Secondly, the plea of unconstitutionality of SMA of 1954 was raised on the ground that – if the persons entitled to registration of marriage contemplated under Sec 4 are only those heterosexual couples belonging to a different sex, the non-heterosexual couples of same-sex will suffer discrimination that is unjustified. Because same-sex couples and different-sex couples constitute one class and therefore their classification into separate classes has no nexus to the object sought to be achieved in granting a stamp of recognition by registration. The LGBTs argued that on applying the underinclusive classification test applied for testing the equality clause in Art 14, the exclusion of non-heterosexual couples of same-sex is unsustainable. The doctrine of underinclusive classification mandates that those who are similarly situated if not treated similarly, the classification is tantamount to unjustified discrimination. If individuals of the same sex have the same rights as are guaranteed to individuals of different sex under the constitution, namely the right to cohabit, the right to a relationship and the right to a civil union as broadly agreed to by all the five judges[4], then on what ground the couples of same-sex alone are not entitled to recognition to their marriage by registration? There appears to be none but, the judges have rejected the plea on the ground that civil union cannot be graduated into a marriage since marriage is not a fundamental right[5]; not a claim[6] or entitlement; and it’s only a statutory right[7]. The cleavage between the existence of the right to civil union and the recognition of the right as a marriage is curious. If the constitution has granted the right to civil union as held by all five judges, the requirement that it cannot be recognized as marriage sounds difficult. Is the nomenclature of marriage or being called as married couple only a privilege of heterosexuals? The judges came very near but retreated if we can say so.

    What emerges is judges failed to enforce the fundamental rights that they declared with regard to Non-heterosexuals or LGBTs by incorporating and or aligning with the SMA of 1954. If the interests of marginalized sections are paramount which is true, judicial innovation or engineering is a constitutional morality. The Supreme Court vested with the power to enforce fundamental rights under Art 32 cannot and shouldn’t be displaying coyness and reticence. The rules of interpretation are hand-made by courts of superior jurisdiction. Indian Supreme Court has boldly adopted a realist approach[8] to constitutional litigation in certain areas in enforcing fundamental rights and in defining meta-constitutional norms[9] including the establishment of a collegium in the appointment of judges based on the interpretation of the word “consultation” in Art 124 and Art 217 of the Constitution[10].

    The precedent from South Africa in the Fourie Case and the United Kingdom in the Ghaidan Case were on point. Chief Justice Chandrachud noted but brushed it aside[11]. The Sec 3 of the United Kingdom’s Human Rights Act, 1998 mandates the reading of the UK’s legislation in a way that is compatible with the European Convention on Human Rights. Why can’t this be the test to enforce fundamental rights? Art 13 read with Art 32 of the Constitution that incorporates a higher test of ultra vires and empowers the Supreme Court to declare the legislation which is inconsistent with fundamental rights as void, does appear to include the softer interpretive test spelled out in Sec 3 of Human Rights Act of 1998.

    After negativing the plea of LGBT based on SMA of 1954, Chief Justice Chandrachud has directed the formation of a Committee headed by the Cabinet Secretary to formulate a policy in framing a legal regime for protecting the constitutionally guaranteed rights of couples of same-sex unions including recognition of their union as marriage[12]. However, these are only “platitudes” according to lawyer-activist Rohin Bhatt[13]. However, Bhat J disagrees with giving any such directive. The disagreement on this has provided a route to a jurisprudential spat on the question of whether the constitutional rights of LGBTs impose a corresponding duty or obligation on the Union Government to implement them by enacting a regulatory regime.

    Bhat J seems to accept that non-heterosexuals have a right to a civil union, but he appears to treat the same as freedom than entitlement or claim to be recognized as an institution[14]. The distinction fine between the right as a freedom of choice and the right as a claim reminds us of Hohfeld's famous analysis of rights[15]. Constitutional rights may not give rise to liability in tort, but still, a correlative duty exists in public authority to obey[16].

    Art 21 recognises the right to life and liberty and therefore, unenumerated rights have evolved from time to time which includes right to privacy in Justice Puttaswamy Case[17] and the right to cohabit, the right to enter into a relationship and the right to form a union even for Non-heterosexuals. Even though these rights are essentially crafted as freedoms, the rights that touch socio-economic interests have been treated as claims against the State and are enforced by issuing directions. This is consistent with the mandate of Art 2(1) of the International Covenant on Economic, Social and Cultural Rights (ICESC). On recognizing the concept of the positive right under ICECS, Sec 27(2) of the Constitution of South Africa has imposed an express duty to implement the rights by “legislation”.

    However, even the right to cohabit, the right to live in and the right to form a civil union which are non socio-economic rights may require an implementation and regulatory mechanism. If the registration of civil union as marriage is a pre-condition for succession to property rights, then the State surely owes an obligation to provide legal recognition by legislation. The demand becomes stronger on the finding of discrimination because recognition has already been given to heterosexual marriage under the SMA of 1954 and personal laws.

    The Supreme Court was not expected to issue a mandamus to legislate. However, mandamus is not everything. A declaration or recognition of an obligation to enact a regulatory regime to operationalize and implement the constitutional rights of Non-heterosexuals by the Supreme Court has had a tremendous moral impact on the constitutional functionaries. LGBTs missed it, unfortunately. Hopefully, a larger bench at some future time may revive the issue.

    [1] Supriyo @ Supriya Chakraborty & anr .vs. Union of India

    [2] See, para 64 of the judgment of Chief Justice D Y Chandrachud.

    [3] On this question, see the judgement: the Chief Justice D Y Chandrachud [para 340 (h)], Sanjay Kaul J (paras 11 to 17), Ravindra Bhatt J and Hima Kohli J [para 149 (v)] P Sri Narasimha J [para 4€] are unanimous.

    [4] See the judgment: Chief Justice DY Chandrachud [para 340(i), (l) and (o)]; Sanjay Kaul J (para 2); Ravindra Bhat J with Hima Kohli J (paras 51,52 and 53); and P Sri Narasimha J [para 4(b)].

    [5] See the judgment: Chief Justice DY Chandrachud [para 340(g)]

    [6] See the judgment the Ravindra Bhatt J with Hima Kohli J [paras 149(i) and (iv)])

    [7]See the judgment of P Sri Narasimha J [para 4(d)]

    [8] See, “How Judges Judge: Theories on Judicial Decision Making” by Timothy J. Capurso: University Baltimore Law Form Volume 29 Number 1, Article 2: http://scholarworks.law.ubalt.edu/If/vol29/iss1/2

    [9] See, Basic Structure and Constitutional Morality: Are they meta-constitutional norms ? by Mohan Katarki: https://theleaflet.in/basic-structure-and-constitutional-morality-are-they-meta-constitutional-norms/

    [10]See, In Re Presidential Reference: (1998) 7 SCC 739 and AOR Association vs UOI: AIR 2015 SC (Suppl) 2463

    [11] See paras 193 to 203 of the judgment of Chief Justice DY Chandrachud.

    [12] See the judgment of Chief Justice DY Chandrachud: para 340(s).

    [13] See, Same-sex verdict: Range, rage against the dying of rights by Rohin Bhat: Times of India dated 22.10.2023: https://timesofindia.indiatimes.com/blogs/voices/same-sex-verdict-rage-rage-against-the-dying-of-rights/

    [14] Se the judgment of Bhatt J: para 69

    [15] See, pages 224 234 of Salmond on Jurisprudence (12th Edition) by PJ Fitzgerald .

    [16] See the article Titled “Misfeasance in a Public Office: A Justifiable Anomaly within the Rights-Based Approach” published in the book titled “Rights and Private Law” edited by Donal Nolan and Andrew Robertson (2014), Hart publishing Limited (p 553 @ 562-563).

    [17] Justice KS Puttaswamy vs Union of India: AIR 2027 SC 4161

    Mohan V. Katarki is a Senior Advocate at Supreme Court of India, New Delhi. Views are personal.

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