New Delhi: A reading of 3:2 366-page judgment in Supriyo @ Supriya Chakraborty vs Union of India, pronounced by the five-judge Constitution bench on Tuesday (October 17), shows that the petitioners in the case succeeded in securing empathy, if not justice, from the bench, to their prayers for recognition of the right to marriage equality.
Doubtless, there was unanimity among the five judges on certain aspects. The court’s authority to hear the case was one such. The second aspect is that queerness is a natural phenomenon that is neither urban nor elite. The third is that there exists no fundamental right to marry under the Constitution. Fourth, the Special Marriage Act (SMA) is neither unconstitutional nor can be interpreted in such a manner so as to enable marriage between queer persons. Last, transgender persons in heterosexual relationships have the right to solemnise marriage under existing legal frameworks.
Beyond these, a distinction is discernible in the manner the majority and minority judges approached the issue. Justices Ravindra Bhat and Hima Kohli begin their judgment by observing that the task of the court lies in determining how the Constitution speaks on the issue. The five judges have no difficulty in agreeing that the Constitution aims at ending the discrimination suffered by the petitioners whose prayer is that the court should ensure their equality in marriage and not simply ask parliament to look into their grievances.
But the complexity of the exercise of granting appropriate and adequate relief to the petitioners appears to have forced all the five judges to throw in the towel. In this, the two minority judges failed to persuade the three majority judges to provide at least partial relief to the petitioners.
The prayer of the petitioners is that LGBTQ+ persons be entitled to solemnise and register their marriages and claim their right to legal recognition of their unions within the marriage fold.
All the five judges agreed that provisions of the SMA are incapable of being “read down” or interpreted by “reading up” in the manner suggested by the petitioners.
But then the three majority judges agreed that reading down Section 4(c) of SMA and Sections 4(c) and 17 of the Foreign Marriage Act, 1969 (FMA) and the notice and objection procedure under SMA can be decided by smaller benches because no question of law is involved in resolving this issue. Does this mean that the petitioners still can aspire for an efficacious remedy before smaller benches of this court, and relitigate some of these issues, left untouched by the larger bench?
The minority judges’ worldview
According to Justices D.Y. Chandrachud and S.K. Kaul, while there is no express fundamental right to marry, there is a right or freedom to enter into a union (spelt out in Navtej Johar, K.S.Puttaswamy, NALSA, Shakti Vahini, Shafin Jahan etc.) and our constitutional values entail respect to the choice of a person on entering into a marriage and the right to choose a marital partner.
As a corollary, the two minority judges held that the right to union necessitates or places a positive obligation on the state to accord recognition to such relationships/unions.
The majority judges’ counterview
To the three majority judges, however, there is indeed a right to relationship within Article 21 which includes the right to choose a partner, cohabit and enjoy physical intimacy with them, to live the way they wish to, and other rights that flow from the right to privacy, autonomy and dignity. The state, however, is bound to extend necessary protection only when their right to enjoyment of such a relationship is under threat of violence, they clarified.
There is no positive obligation on the state to recognise this right, they held. The court cannot direct that the state must create a platform for this purpose, as that would be a stretch, in the absence of any overt or inert threat, they added.
To the majority judges, the idea that one right can lead to other rights, emanating from it, has been conclusively rejected by seven judges in All India Bank Employees Association v National Industrial Tribunal. This decision was quoted with approval in Maneka Gandhi v Union of India. (The right to go abroad is clearly not a guaranteed right under any clause of Article 19(1)).
“There is no recorded instance nor was one pointed out where the court was asked to facilitate the creation of a social institution like in the present case,” the judgment authored by Justice Bhat and joined by Justice Kohli observed.
The majority judges termed CJI Chandrachud’s previous observations in Navtej Johar as mere obiter dicta.
In their view, Justice Chandrachud’s broader observations in Navtej Johar obliging social institutions to accommodate and facilitate exercise of choice fully were not necessary. “They travelled beyond the scope of the court’s remit and have to be viewed as obiter dicta. That the State should or ought to order such social institutions, is different from a direction issued by this court, which they must carry out (both underlined and italicised by Justice Bhat),” Justice Bhat observed.
“Even if we were to, for argument sake, recognise an entitlement under the Constitution to enter into an abiding cohabitational relationship or union – it cannot follow to a claim for an institution. 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,” the majority judges concluded.
“Ordering a social institution” or rearranging existing social structures, by creating an entirely new kind of parallel framework for non-heterosexual couples, would require conception of an entirely different code, and a new universe of rights and obligations. This would entail fashioning a regime of state registration, of marriage between non-heterosexual couples; the conditions for a valid matrimonial relationship amongst them, spelling out eligibility conditions, such as minimum age, relationships which fall within “prohibited degrees”, grounds for divorce, right to maintenance, alimony etc.,” the majority judges explained.
The nitty-gritty of providing relief to the petitioners, even as the majority judges empathised with their prayers, made them feel that this is beyond the scope of the present bench.
The elaboration of rights of queer persons, to say that exercise of choice to such relationships renders these rights meaningful, and that the state is obliged to “recognise a bouquet of entitlements which flow from such an abiding relationship of this kind” is not called for, the majority judges explained their disagreement with the minority judges.
The majority judges, in the process, added many more reasons, not contemplated by the minority judges, to reject the petitioners’ prayer to read up the SMA.
The provisions and the objects of SMA clearly point to the circumstance that parliament intended only one kind of couples, i.e., heterosexual couples belonging to different faiths, to be given the facility of a civil marriage, they said.
Structurally, Section 4 (conditions relating to solemnisation of special marriages) contemplates marriages between a man and a woman. To read SMA in any other manner would be contrary to established principles of statutory interpretation. It is also not permissible for the court to ‘read up’ and substitute the words ‘any two persons” to refer to a marriage between non-heterosexual couples, they added.
The purpose of terms like ‘wife, ‘husband’, ‘man’ and ‘woman’ in marriage laws (and other laws on sexual violence and harassment as well) is to protect a socially marginalised demographic of individuals. Provisions in the SMA, for alimony, and maintenance (Sections 36 and 37) confer rights to women; likewise certain grounds of divorce (conviction of husband for bigamy, rape) entitle the wife additional grounds (Section 27) to seek divorce, the majority judges explain.
The general pattern of these provisions – including the specific provisions, enabling or entitling women to certain benefits, and the effect of Sections 19, 20, 21 and 21A of SMA is that even if for arguments’ sake, it were accepted that Section 4 of SMA could be read in gender neutral terms, the interplay of other provisions – which could apply to such non-heterosexual couples in such cases, would lead to anomalous results, rendering the SMA unworkable, they pointed out.
One wonders whether the petitioners, represented by a galaxy of senior counsel, were able to answer these concerns adequately during the hearing. It is possible that many of them conveyed their belief that a mere declaration by the court recognising their right to marriage equality would ensure resolution of such concerns in due course of time. But it appears that the judges – both majority and the minority – felt that the nitty-gritty ought to get precedence before a formal declaration from the court recognising the petitioners’ right to marriage equality, as it would only mean a mere lip service.
If provisions of the SMA are to be construed as gender-neutral (such as persons or spouses, in substitution of wife and husband) it would be possible for a cis-woman’s husband to file a case or create a narrative to manipulate the situation. Gender-neutral interpretation of existing laws, therefore, would complicate an already exhausting path to justice for women and leave room for perpetrator to victimise them, says Justice Bhat’s judgment. Obviously, the majority judges seem to have been swayed by hypothetical situations, which can yield their own legal remedies when they actually happen, in declining relief.
“Words of the statutes have to be read, taking into account the fabric of concepts, rights, obligations and remedies which it creates. Removing or decontextualising provisions, from their setting and “purposively” construing some of them cannot be resorted to, even in the case of SMA as well as FMA,” the majority judges reasoned.
Empathy
The majority judges agreed that not providing for non-heterosexual couples recognition, which is available for heterosexual couples’ unions and cohabitation as marriages in various laws and regulations, results in their exclusion. They thus referred to employment (nominations in pension, provident fund, gratuity, life and personal accident insurance policies), credit, purposes of receiving compensation in the event of fatal accidents as instances.
The individual earned benefits (by each partner or both collectively) which would be available to family members (such as employee state insurance benefits, in the event of injury of the earning partner, provident fund, compensation, medical benefits, insurance benefits, in the event of death of such earning partner) are examples of what the injured or deceased partner by dint of her or his work, becomes entitled to, or the members of her family become entitled to. The denial of these benefits and inability of the earning partner in a queer relationship, therefore, has an adverse discriminatory impact, they acknowledged.
The state may not intend the discrimination, or exclusion in the conferment of such benefits or social welfare measures. Yet, the framework of such policies or regulations, expressed in favour of those in matrimonial relationships, results in denial of entitlements/benefits, despite the professional abilities and contributions which such individuals might make to society.
This deprivation has to be addressed, the majority judges held. This injustice and inequity results in discrimination, unless remedial action is taken by the state and Central governments, they point out.
While the right to marry or have a legally recognised marriage is only statutory, the right to cohabit and live in a relationship in the privacy of one’s home is fundamental, and enjoyed by all. This is not to say that the latter is unqualified or without restriction. Rather it is a right afforded to all, irrespective of the state’s recognition of the relationship or status, as in the case of married couples, the majority judges conceded.
The discriminatory impact recognised here is to highlight the effect of a legislative vacuum – specifically on long-term queer couples, who do not have the avenue of marriage to entitle them to earned benefits, they underlined.
Could this same logic then be extended to heterosexual couples that choose to not get married, despite having the avenue?
The majority judges underlined that this would require further consideration by the State, and was an aspect that was neither argued, nor were the judges called upon to decide in the present petitions. “State must remain cognizant of such an unwitting consequence of creating two parallel frameworks, for live-in or domestic partnerships, and marriages, and the confusion or anomalies this may cause to gendered legal frameworks (as they stand today) while trying to remedy or mitigate the discrimination faced by queer couples,” they added.
The fact that parliament has made the legislative choice of including only ‘married’ couples for joint adoption (where two parents are legally responsible) arises from the reality of all other laws wherein protections and entitlements flow from the institution of marriage.
To read down ‘marital’ status as proposed may have deleterious impacts that only the legislature and executive could remedy – making this, much like the discussion on interpretation of SMA, an outcome that cannot be achieved by the judicial pen. Having said this, however, there is a discriminatory impact on queer couples, perhaps most visible through this example of adoption and its regulation that requires urgent state intervention, the majority judges acknowledge.
In the absence of legal recognition of a queer couple union, they are left to adopt as individuals and the resultant de facto family would have no avenue for legal recognition. This iniquitous result too is an aspect which needs to be addressed as the impact here is not only on the queer couple (who have no avenue to seek legal recognition of their union) but also upon the children adopted by them (who have no say in the matter), they added.
Given the social reality that queer couples are having to adopt in law as individuals, but are residing together and for all purposes raising these children together, the State arguably has an even more urgent need to enable the full gamut of rights to such children, qua both parents, the majority judges highlight.
“The underlying assumption in the law as it exists that such unmarried heterosexual or queer couples should not adopt needs to be closely examined. The need of such couples to have and raise a family in every sense of the term, has to be accommodated within the framework of the law, subject to the best interests of the child,” they have suggested.
“The existing state of affairs which permits single individuals to adopt, and later to live as a couple in due exercise of their choice, in effect deprives the children of such relationships various legal and social benefits, which are otherwise available to children of a married couple. The State as parens patriae needs to explore every possibility and not rule out any policy or legislative choice to ensure that the maximum welfare and benefits reach the largest number of children in need of safe and secure homes with a promise for their fullest development,” they have recommended.
The majority judges identified their disagreement with the minority judges thus:
“The court would have to fashion a parallel legal regime, comprising of defined entitlements and obligations. Such a framework containing obligations would cast responsibilities upon private citizens and not merely the State. The outlining of a bouquet of rights and indication that there is a separate constitutional right to union enjoyed by queer couples, with the concomitant obligation on the State to accord recognition to such union, is what we take exception to.”
By merely expecting the Union government to take the initiative and address the grievances of discrimination of the queer couples in specific areas, the majority judges seem to have missed an opportunity to at least make a beginning, and join the minority judges in meeting the aspirations of the LGBTQ+ persons to the extent possible.
