Judicial Paradox: Recognizing Exclusion but Denying Any Remedy
On October 17, 2023, a five-judge bench of the Supreme Court of India delivered its long-awaited verdict in the marriage equality case: Supriyo v. Union of India. The case centered on a set of petitions submitted by members of the queer community, seeking a substantive acknowledgment of their right to marry under the Special Marriage Act (SMA) of 1954- a law that currently governs marital relations in India under a secular legal code. The petitioners contended that the SMA’s exclusion of queer couples was discriminatory, and constituted a violation of their fundamental rights.
In a unanimous decision, the court ruled against the petitioners, holding that the right to marry was not fundamental for anyone—queer and non-queer alike (See, opinion of Dr Dhananjaya Y Chandrachud, Paragraphs 117-185; Opinion of Sanjay Kishan Kaul, Paragraph 3; See opinions of S. Ravindra Bhat and Hima Kohli, Paragraphs 45-50; Opinion of Pamidighantam Sri Narasimha, Paragraphs 4-14). Consequently, the court held that the exclusion of queer couples from the ambit of the SMA, though regrettable, could only be remedied by the legislature and not the judiciary (See, opinion of Dr Dhananjaya Y Chandrachud, Paragraphs 204-208; Opinion of Sanjay Kishan Kaul, Paragraph 17; See opinions of S. Ravindra Bhat and Paragraphs 71-104; Opinion of Pamidighantam Sri Narasimha, Paragraph 12). However, the court was divided on the legality of adoption rights and civil unions. Two justices held that the current adoption regime was discriminatory insofar as it discriminated against unmarried couples and, by extension, queer couples (See, opinion of Dr Dhananjaya Y Chandrachud, Paragraphs 288-323; Opinion of Sanjay Kishan Kaul, Paragraph 3). The same two justices also held that while the constitution did not confer a right to marry upon anyone, it did confer upon the state the responsibility to legally recognize unions (See, opinion of Dr Dhananjaya Y Chandrachud, Paragraph 244; Opinion of Sanjay Kishan Kaul, Paragraph 11). Unfortunately, the majority bench of three justices disagreed, and so, the verdict came with no legal relief for the queer petitioners on all three fronts: marriage under the SMA, the legal recognition of civil unions, and adoption rights.
Why did the majority diverge from Justice DY Chandrachud and S. Ravindra Bhat’s opinions? In their opinion, Justices Bhatt and Kohli jointly stated that "addressing all these aspects and concerns means considering a range of policy choices, involving a multiplicity of legislative architecture governing the regulations, guided by diverse interests and concerns—many of them possibly coalescing." (In Paragraph 118 of their judgment). Therefore, they believed that the complexities surrounding the recognition of marriage and unions was beyond the court's purview as it was more of a legislative exercise, leading them to delegate this responsibility to Parliament. Additionally, the judgment did not specify a timeline for Parliament to enact a law for queer couples, nor did it state that Parliament must explicitly acknowledge their marital rights. The court's ruling, which merely suggests that Parliament deliberate on the matter without mandating any relief, functions more as an advisory than a binding directive.
In addition to this, serious flaws exist in the court’s legal reasoning, some of which have already been highlighted in two review petitions challenging the verdict. A prominent issue among these flaws was the majority's acceptance of the discriminatory impact of excluding queer couples from the SMA, without providing a concomitant binding declaration to ensure that the state remedies this “complex” form of discrimination. To address the issue of complexity, the petitioners presented constitutionally compliant recommendations to the Bench throughout the hearings that, if adopted, would have allowed the state to recognize queer marriages with minimal tinkering of the SMA. This would have averted discrimination and upheld the petitioners' rights. Furthermore, the Supreme Court had the authority to mandate the state to do so under Article 32 of the Indian Constitution, which expressly states that the court has the power to not just recognize fundamental rights but also enforce them.
The other issue with the majority's reasoning was the non sequitur nature of their conclusion. While acknowledging the discriminatory impact of queer exclusion from the institution of marriage, the court oddly concluded that no enforceable remedy could be provided because the right to marry itself was not fundamental. This is odd because in paragraph 148 of their opinion, the majority expressly acknowledged that such discrimination was indeed a violation of Article 15 of the Constitution (which prohibits the state from discriminating against any citizen on the grounds of sexual orientation and gender identity); and yet, the majority refused to exercise its power under Article 32 to enjoin this discrimination.
This poses a significant problem for petitioners because Article 141 confers the Supreme Court with the authority to have the final say in remedying all fundamental rights violations. The court's refusal to offer any relief to the queer community raises concerns about the legitimacy of the court and the effectiveness of our legal system which is supposed to protect the rights of all marginalized communities.
Marriage as a Matter of Personal Choice
At the heart of the Court’s reasoning in Supriyo was the observation that marriage was a matter of personal choice. The Court asserted that the fact that something is a matter of personal choice and desirable does not automatically warrant its elevation to the status of a fundamental right. "The importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support," said Justices Narasimha and Kohli in paragraph 49 of their opinion. However, the same top court's rulings in previous cases show a completely opposite reasoning. Key among them is the court’s jurisprudence on abortion and privacy.
The right to abortion is both a matter of healthcare necessity and reproductive choice—a choice that abortion rights proponents argue is essential for the mother to make to lead a dignified and autonomous life. The same court has consistently held that a woman’s right to an abortion is a facet of personal liberty and that this choice was protected from unreasonable state interference under Article 21 of the Constitution (which guarantees each person the right to life and the right to personal liberty). This principle was established in Suchita Srivastava v Chandigarh Administration (2009) and reaffirmed more than a decade later in X vs. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi and Another (2022). It should be noted that even the queer petitioners invoked Article 21, arguing that it was violated in their demand for the right to marry. Specifically, they contended that the right to life and personal liberty included queer people’s right to marry under the SMA. In this instance, however, the court diverged from precedent, holding that queer people’s choice to marry was not protected by the Constitution.
Regarding privacy, a nine-judge bench of this Court unanimously recognized it as a fundamental right in Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors. (2013). Writing for the majority, Justice DY Chandrachud held that "The concept of privacy is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element, which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life." (In paragraph 168)
Despite these progressive rulings on individual autonomy, dignity and personal choice, the court rejected the petitioners' constitutional claims on each of these fronts. The court went further and held that the state was not compelled to recognize such relationships, even though this non-recognition specifically and significantly impacted their ability to lead a dignified life (dignity, as the court held in Puttaswamy, is a facet of privacy) and constituted discrimination based on gender identity and sexual orientation—both of which are protected categories under Article 15 of the Constitution. This decision is both incoherent in its reasoning and invidious in its impact.
In contrast, while granting no right to marry, the court did acknowledge an amorphous "right to a relationship," asserting that all couples in India, regardless of sexual orientation and gender identity, had the right to enter a relationship if they wished. However, only heterosexual and cisgender couples could have these relationships officially recognized by the state. In the absence of mandating any deadline for the state to recognize queer relationships, the court went against its own precedent which previously upheld individual choice in the face of hostile state action. For those queer couples who want to choose to voluntarily opt into the institution of marriage, that choice would remain closed off to them as long as the state deemed fit. And since the court mandated no remedial action, this exclusion could potentially persist forever. The essence of the Supriyo judgment is clear: state-sanctioned discrimination against queer couples is now legally acceptable in the realm of family law, and the Constitution does not view queer relationships as equal to their non-queer counterparts. Furthermore, until the state decides to act, this discriminatory treatment is acceptable under the law, even though the right to live a dignified and autonomous life, free from unreasonable state interreference, was upheld as a fundamental right in Puttaswamy.
This carte blanche license to discriminate against queer people is repugnant because it keeps them as second-class citizens. It is well-established that marriage not only shapes the course of one's personal, emotional, and social journey but also plays a decisive role in determining the potential future of any children the couple may choose to bring into the world. It is, in many ways, one of the most significant choices a person makes in their lives. And yet, the court remained indifferent to the far-reaching consequences of this denial. Supriyo not only undermines principles of equal rights and nondiscrimination but also sends a troubling message about the perceived worth of queer relationships to the people—the very same people who elect lawmakers in whose power it is now to legalize queer marriages.
By offering no relief, Supriyo has left queer people exactly where they were even before the case began. It did not advance queer rights by an inch, making it a deeply disappointing decision. To compound the disappointment, the Court also declared that marriage was not a fundamental right for anyone, implying that any future state action barring any two persons from marrying may be held as constitutional. Consider a hypothetical scenario where the Indian state decides to ban or restrict heterosexual marriages between Indian and certain foreign nationals (such as Canadian, Chinese, and Pakistani nationals) under the SMA or the Foreign Marriage Act due to concerns of “national security”. While such relationships are presently recognized under the law, following the passage of Supriyo, their status is now in jeopardy. The same uncertainty applies to the validity of the SMA itself, whose provisions could now be diluted if the state deems it appropriate.
Supriyo's failure to advance queer rights, coupled with its explicit denial of marriage as a fundamental right, leaves queer people in a precarious position. As they navigate a new legal landscape that questions the very essence of their relationships, it is imperative that they display greater resilience, unity, and an unyielding determination in the face of hostility. The journey ahead will demand a collective effort to challenge these new found constitutional protections to discrimination and require continued advocacy to change people's hearts and minds on this issue. Despite the setback, a commitment to equality remains paramount in reshaping a future where love triumphs over discrimination.
This article has been authored by Kanav N Sahgal, Project Manager at the Samvidhaan Fellowship and Communications Managar at Nyaaya. This blog is part of the RSRR’s Excerpts from Experts series.