Right To Civil Union, Adoption, Transgender Persons' Right To Marry: Where Supreme Court Bench Agreed & Disagreed In Marriage Equality Case

"There is a degree of agreement and a degree of disagreement on how far we have to go," remarked CJI DY Chandrachud as he commenced the pronouncement of the judgement denying the grant of legal recognition for queer marriages in India in open court yesterday. With four separate judgements authored by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat, and Justice PS Narasimha, a lot seems to be clarified on these "agreements and disagreements" of the bench on crucial questions of law. This article aims to shed light on the nuances of the legal discourse among the five judges and the diverging viewpoints that have shaped this decision. The judgement was pronounced in a batch consisting of twenty petitions filed by same-sex couples, transgender individuals, and LGBTQIA+ activists. During the course of the hearings, the bench had clarified that it will confine the challenge only to the Special Marriage Act and will not touch personal laws. Thus, the challenge pertaining to the Hindu Marriage Act was not taken up.1. No Fundamental Right To MarryThe Supreme Court unanimously held that there was not fundamental, unequivocal right to marry in India. The CJI, in his judgement, referring to the judgements cited by the petitioners in their arguments to assert the right to marry, stated that none of the majority judgements (in Justice K.S. Puttaswamy v Union Of India and Navtej Singh Johar & Ors. v. Union of India) held that the Constitution guaranteed the right to marry. However, he added that while marriage may not be a fundamental right in itself, it may have attained significance because of the material benefits flowing from the institution of marriage. In this context, the CJI stated that while the Constitution does not expressly recognize a fundamental right to marry, many of the constitutional values, including the right to life and personal liberty may be attained by the material benefits which marriage entails. Justice Kaul did not specifically comment on the right to marry, but stated that he broadly agreed with the CJI's judgement.Justice Bhat, speaking for himself and Justice Kohli, held that there was no unqualified right to marriage except that recognised by statute. He asserted that marriage was a social institution, which preceded the State. Thus, it was not a status conferred by the State and the source of marriage was external to the state. He stated that this external source defined the boundaries of marriage. "This implies that state power to regulate marriage does not sit easy with the idea of marriage as a fundamental right," he added. Justice Bhat further stated that civil marriage or recognition of any such relationship could not exist in the absence of statute. Justice Narasimha too, agreed with Justice Bhat and stated that the right to marriage was a statutory right and it flowed from a legally enforceable customary practice. He added that marriage as an institution was conditioned by culture, religion, customs and usages. Justice Narasimha further added that the benefits of marriage, however fundamental to a fulfilling life, do not make marriage itself a fundamental right.2. On Striking Down The Special Marriage Act & Allied LawsAnother point on which the entire bench agreed was to not strike or read the Special Marriage Act (SMA) and its allied laws down. As per the judgement written by CJI DY Chandrachud, Section 21A of the SMA linked the Act to personal and non-personal laws of succession, making the issue extremely complex in nature. On a similar note, Justice Kaul, in his judgement, also stated that the entitlements devolving from marriage were spread out across a "proverbial ‘spider’s web’ of legislations and regulations" and thus, tinkering with the scope of marriage under the SMA could have "a cascading effect" across various laws. The CJI also stated that the SMA was enacted to enable persons of different religions and castes to marry. In this context, if the SMA was held void for excluding queer couples from its ambit, it would take India back to the pre-independence era, where persons of different religions and castes could not get married. Finally, both the CJI and Justice Kaul held that reading words into the provisions of the SMA and other allied laws would mean entering into the realm of the legislature, which the court was not equipped to do due to its "institutional limitations". The judgement by Justice Bhat and Justice Kohli concurred with this view, while also holding that the SMA was not unconstitutional for violating Articles 14 and 15 as the sole intention of the SMA was to enable marriage, as it was understood at the time the 1954 Act was passed (i.e., for heterosexual couples), of persons of different faiths. In this context, it was asserted that as per the decisions of the court, as long as an objective was clearly discernible, it could not be attacked merely because it did not make a better classification. Further, the judgement added that the original...

Right To Civil Union, Adoption, Transgender Persons' Right To Marry: Where Supreme Court Bench Agreed & Disagreed In Marriage Equality Case

Padmakshi Sharma

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