Same-sex marriage verdict: Common ground and differences among five Supreme Court justices
Same-sex marriage verdict: The verdict on same-sex marriage brings to light a fascinating tapestry of perspectives among the five Supreme Court justices who presided over the case. Their legal interpretations and jurisprudential stances played a crucial role in shaping the final decision on a wide range of issues brought before them.
While the Constitution bench's judgment in the same-sex marriage case reflects a blend of viewpoints, the judges exhibited unanimity on certain crucial aspects of the matter. However, they diverged significantly on other pivotal elements, ultimately resulting in a 3-2 majority that ruled against providing constitutional safeguards for civil unions and adoption rights for LGBTQ couples.
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The nuances in their legal reasoning, the weight they assigned to precedent, and their individual convictions led to both consensus and dissent within the Supreme Court, marking this as a historic moment in the ongoing discourse on same-sex rights and marriage.
All the justices on the bench reached a unanimous agreement that queerness should not be erroneously labeled as an urban or elitist concept, a notion that the Union government had put forth in its challenge to the petitions.
Chief Justice of India Dhananjaya Y. Chandrachud emphasized that "homosexuality or queerness is not solely an urban concept, nor is it restricted to the upper classes or privileged communities." He asserted that individuals can identify as queer irrespective of whether they come from rural areas, small towns, semi-urban settings, or urban spaces. Moreover, this identity transcends considerations of caste and economic background. He highlighted that queerness is not confined to an English-speaking, white-collar worker residing in a metropolitan city, as it is equally applicable to a woman working on a farm in an agricultural community.
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Justice Kaul concurred, noting that non-heterosexual unions have been acknowledged in ancient Indian civilization, supported by various texts, practices, and depictions in art. He drew upon examples from the Rig Veda, Somdatta's Kathasaritsagara, and the Sufi tradition to illustrate that these historical references signify the existence of such unions as an intrinsic facet of human experience. Justice Kaul stressed that it is misleading to claim that non-heterosexual unions are exclusive to modern society, as historical evidence demonstrates their enduring presence.
Justice S. Ravindra Bhat, in his joint opinion with Justice Hima Kohli, also affirmed that queerness is a natural aspect of human diversity, devoid of any association with urban or elite characteristics.
The unanimous stance of the bench firmly emphasized that the role of judicial legislation is limited and should not encroach upon the domain of Parliament and state assemblies, which are responsible for recognizing and regulating marital institutions in India. They underlined the importance of a legitimate state interest in overseeing these relationships.
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The Special Marriage Act (SMA) was a focal point of contention, as it excluded same-sex couples. Chief Justice Dhananjaya Y. Chandrachud asserted that striking down these provisions in the SMA would harken back to the pre-Independence era when individuals of different religions and castes were unable to formalize their love through marriage. He argued that such a judicial decision would not only regress India to a period marked by social inequality and religious intolerance but would also force the courts into a dilemma of eliminating one form of discrimination while permitting another.
In contemplating the two potential approaches, Justice Chandrachud raised the concern that if the court opted for the second approach and sought to reinterpret the SMA, it would be intruding into the legislative domain. In his separate judgment, Justice Kaul echoed that the SMA discriminates against non-heterosexual relationships in violation of Article 14, which pertains to equality. However, he acknowledged the interpretive challenges associated with expanding the SMA to encompass marriages between non-heterosexual couples. Tinkering with the scope of marriage under the SMA, he noted, could have far-reaching consequences across various laws.
Justice Bhat, in conjunction with Justice Kohli, emphasized that the SMA aimed to provide a legal avenue for marriages that did not have societal approval or established customs to formalize them. However, they argued that it would be a considerable stretch to assert that this inclusion extended to same-sex marriages. Therefore, they concluded that the challenge to the constitutionality of the statute must be dismissed. Justice Narasimha concurred with the rationale outlined in Justice Bhat's judgment.
All five judges were in unanimous agreement that there is no inherent fundamental right to marry, as such a right would compel the State to establish marriage institutions.
"The petitioners seek that the court recognize the right to marry as a fundamental right. As explained above, this would mean that even if Parliament and the State legislatures have not created an institution of marriage in exercise of their powers under Entry 5 of the Concurrent list, they would be obligated to create an institution because of the positive postulate encompassed in the right to marry. This argument cannot be accepted," articulated the Chief Justice.
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Justice Bhat's perspective aligned with this stance: "The fundamental importance of marriage remains that it is based on personal preference and confers social status. 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... There cannot, for the above reasons, be a per se assertion that there exists an unqualified right to marry which requires treatment as a fundamental freedom."
Justice Narasimha firmly upheld that the right to marry is, in fact, a statutory right. He emphasized, "There is no unqualified right to marriage guaranteed by the Constitution, that qualifies it as a fundamental freedom."
Justice Narasimha added that the assertion of the right to marry, detached from the existing statutory framework, essentially amounts to a plea for the creation of legally and socially enforceable statuses. It involves a request for mandamus to establish the necessary legislative and policy framework for recognizing relationships as marriages under the purview of the law. This request, according to the judge, places affirmative obligations on the State to enact new laws or, at the very least, amend existing ones.
Right to Civil Union
A sharp divergence emerged among the judges regarding the right of queer couples to enter into a civil union.
Chief Justice Dhananjaya Y. Chandrachud and Justice Kaul advocated in favor of recognizing the right of queer couples to engage in a civil union. Chief Justice Chandrachud asserted that this right encompasses the freedom to associate with a partner of one's choice, extending recognition to the partnership, and ensuring access to essential goods and services. He emphasized that these elements are vital for the realization of self-development.
For this right to hold real meaning, he contended that the State must acknowledge a range of entitlements that stem from a lasting relationship of this nature. He further cautioned that a failure to recognise such entitlements would perpetuate systemic discrimination against queer couples. Justice Kaul concurred with this perspective.
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However, Justice Bhat held a notably different opinion. He pointed out the formidable challenges involved in, through judicial decree, creating a civil right to marry or establishing a civil union. The judge maintained that "ordering a social institution" or restructuring existing social constructs to create an entirely new parallel framework for non-heterosexual couples would necessitate the formulation of an entirely new legal code and a fresh array of rights and obligations. This would entail devising a system of state registration for marriage between non-heterosexual couples, defining the conditions for a valid matrimonial relationship among them, specifying eligibility criteria such as minimum age and relationships falling within prohibited degrees, determining grounds for divorce, and addressing issues like the right to maintenance and alimony.
Justice Narasimha concurred with Justices Bhat and Kohli, asserting that a right to a civil union or a lasting cohabitational relationship with legally enforceable status cannot be situated within Part III of the Constitution of India, which deals with fundamental rights. Granting the right to enter into a civil union, Justice Narasimha contended, essentially mandates the State to grant recognition or legal status to these unions, which will yield benefits. This, in his view, would infringe upon the doctrine of the separation of powers. He highlighted that framing a positive right and the ensuing entitlements necessitate the State to regulate such unions and their associated benefits. Consequently, this direction effectively calls for amending existing statutory frameworks or, possibly, creating new legislation.
The Chief Justice and Justice Kaul, in their separate yet concurring judgments, deemed one of the guidelines of the Central Adoption Resource Authority (CARA) unconstitutional. This particular guideline had prohibited unmarried and queer couples from adopting children.
In his judgment, the Chief Justice highlighted the absence of substantial evidence to support the claim that only a married heterosexual couple could provide stability to a child. He underlined that the Court had already acknowledged the pluralistic values enshrined in the Constitution, which ensure the right to form various types of associations. The Chief Justice further asserted that the law should not make assumptions about good or bad parenting based on individuals' sexuality. He stated that such an assumption perpetuates a stereotype rooted in sexuality, where only heterosexuals are considered good parents while others are unfairly labeled as bad parents, a practice explicitly prohibited by Article 15 of the Constitution. Justice Kaul concurred with this viewpoint.
However, three other judges—Justices Bhat, Kohli, and Narasimha—held contrasting opinions. Justice Bhat, in his separate judgment, emphasized that when a couple adopts, they are assessed jointly, and the legal responsibility falls on both parents. He expressed concerns that interpreting the law in the manner proposed by the Chief Justice would have adverse consequences, as the existing legal framework would be ill-equipped to safeguard the child's interests in cases of a joint adoption by an unmarried couple. He argued that this would not be in the best interest of the child.
Justice Narasimha, in his separate judgment, concurred with Justice Bhat concerning the constitutionality of the CARA Regulations, 2020.
The majority judgment acknowledged the sense of exclusion experienced by the queer community. However, it stressed that addressing their concerns would necessitate a comprehensive study of the implications, involving a multidisciplinary approach and a polycentric resolution. The Court acknowledged that it is not the appropriate forum to provide comprehensive remedies in this regard.
- With inputs from agencies
