“All human beings are born free and equal in dignity and rights.”
On October 17, 2023, a five-judge constitutional bench of the Supreme Court of India declined to grant legal recognition to same-sex marriages, citing a lack of authority to make law. This decision marks a regression in the rich jurisprudence developed by the country’s courts through a series of progressive judgments. The battle for the recognition of LGBTQ rights has persisted for a long time, with the Supreme Court of India playing a pivotal role in advancing these rights through its progressive approach.
In a landmark 2014 judgment, the Supreme Court declared transgender people as the ‘third gender,’ affirming that fundamental rights under the Constitution of India equally apply to them. The court further decriminalized homosexuality in 2018 by striking down Section 377 of the IPC to the extent that it criminalized consensual sexual acts between homosexuals. This judgment granted legal recognition to private homosexual relations.
However, the journey had just begun. To bring LGBTQ+ individuals on equal footing, they need equal rights and opportunities in all fields. In India, many rights are determined by marriage, such as inheritance, succession, and maintenance. Although same-sex marriages are not expressly prohibited, they lack the legal recognition and regulation that heterosexual marriages enjoy. Consequently, while a homosexual couple may marry and live together, they are not legally recognized as lawfully wedded, with no recourse to enforce the rights that come with legal marriage.
In a recent case, the plea for the right of queer individuals to marry was rejected by the Supreme Court of India with a 3:2 majority. The court unanimously held that there is no fundamental right to marry in India, and marriages between queer persons cannot be read into the Special Marriage Act, 1954. The court also asserted that it could not legislate upon queer marriages, as it would violate the doctrine of separation of powers and encroach upon the legislative domain.
The Court, in its decision, affirmed the right of queer couples to cohabit without the threat of violence or interference. However, it notably refrained from issuing directions to formally recognize such relationships as marriages. The Apex Court justified its non-intervention by pointing to the absence of legislation, citing the doctrine of separation of powers.
This judgment has garnered more criticisms than appreciations, primarily due to what is perceived as a narrow view adopted by the Supreme Court. This criticism is especially poignant given the Court’s history of delivering progressive judgments. Several key issues have been highlighted in the critique of this judgment:-
- Narrow interpretation by the Court
The Constitution of India mandates equality before the law and equal protection of laws for every person within the territory of India. It is a well-established legal principle that for a classification to qualify as reasonable and not violate the right to equality enshrined in Article 14 of the Constitution, two tests must be fulfilled. Firstly, the classification must be based on intelligible differentia. Secondly, the differentia must have a rational nexus to the object sought to be achieved by the legislation. In the present case, same-sex couples are subject to discrimination solely on the basis of ‘sex,’ failing to meet the test of reasonability. This constitutes a clear violation of Article 14.
Article 19(1)(a) of the Constitution of India guarantees every citizen the right to freedom of speech and expression. This right inherently includes the freedom to express one’s gender and sexual identity through words, actions, behavior, or any other form of expression. Marriage, being a profound expression of love and commitment, should fall within the ambit of the freedom of expression.
Therefore, the denial of the opportunity for homosexual couples to enter into legally recognizable marriages constitutes a blatant violation of the rights guaranteed to them under Articles 14, 15, 19, and 21 of the Constitution of India.
- Neglect of established precedents
The Supreme Court of India has consistently affirmed in numerous cases that the right to marry and the right to choose one’s life partner are integral components of the Right to Life and Personal Liberty under Article 21 of the Constitution. The court has unequivocally asserted that individuals, not being minors, possess the right to marry whomever they desire. Adults can consensually select each other as life partners, exercising their freedom of choice and expression as provided under Articles 21 and 19 of the Constitution. Consequently, the freedom to make choices in matters related to the pursuit of happiness is intrinsic to an individual’s personal liberty.
- Self-contradictory & manifestly unjust
This judgment appears flawed as the court declined to afford legal protection to queer couples despite acknowledging the discrimination they face. While recognizing that the petitioners’ fundamental rights are violated by the state and they endure discrimination, the court opted not to provide any legal protection. The assertion that the petitioners are enduring discrimination, yet turning them away with best wishes for the future, aligns neither with this Hon’ble Court’s constitutional obligation towards queer Indians nor with the separation of powers contemplated in our Constitution. Our Constitution primarily tasks this Hon’ble Court, not the respondents (State), with upholding fundamental rights. To deliver justice, the court should have embraced a more progressive approach..
- Judgement appears to be in contravention with the spirit of Article 32:
The judgment seems to contradict the essence of Article 32, which grants any person the right to directly move to the Supreme Court of India for the enforcement of their fundamental rights, and the Supreme Court has the power to issue writs for the same. This article holds great significance, as Dr. B.R. Ambedkar referred to it as “the very soul of the Constitution and the very heart of it.” Justice M. Patanjali Sastri, the 2nd Chief Justice of India, expressed that the Supreme Court should see itself as the “protector and guarantor of fundamental rights” and declare that it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection. Justice Gajendragadkar opined that the Court must play the role of a ‘sentinel on the qui vive’ and always consider it a solemn duty to zealously and vigilantly protect fundamental rights. Justice P.N. Bhagwati highlighted the constitutional philosophy of the right to constitutional remedies, emphasizing that the Supreme Court should not be constrained to fold its hands in despair but should have the power to issue any direction, order, or writ.
Therefore, this verdict made an error in concluding that one cannot approach the Apex Court to seek the enforcement of unenumerated fundamental rights.
- Judgement appears to be in contravention with the spirit of Article 142:
Article 142 of the Constitution provides a unique power to the Supreme Court, allowing it to pass any order necessary for doing “complete justice.” This authority is typically applied in cases where no remedy has been provided under law or statute. In such situations, the Court can extend itself to put an end to a dispute in a manner that fits the facts of the case.
This power is based on the Latin maxim “fiat justitia ruat caelum,” meaning “let justice be done though the heavens fall.” This maxim signifies the belief that justice must be realized regardless of consequences. When a judge decides ‘not to obey the laws too well,’ it must be to ensure that it is for doing complete justice between the parties, and in doing so, nothing should stand in the way of the judge. This understanding emphasizes that the ultimate objective of judicial power is to ensure complete justice between the parties.
Does article 142 permit judicial legislation?
The question that arises is whether Article 142 permits judicial legislation. Pandit Thakur Das Bhargava observed that Article 112 (now Article 136) read with Article 118 (now Article 142) is akin to the very wide powers possessed by the Privy Council, enabling the court to dispense justice according to the principles of ‘natural justice.’ Alladi Krishnaswami Ayyar observed that the power to do ‘complete justice’ envisaged in draft Article 118 (now Article 142) was not only to act as a supplement to its wide appellate powers under draft Article 112 (now Article 136) but also to enable the court to prevent any injustice or miscarriage of justice from being caused.
Even in the absence of a fundamental right to marry or form a union, the rights to equal protection, dignity, and fraternity are sufficient to justify judicial intervention.
- The Special Marriage Act, 1954
In the impugned judgment, Justice S.K. Kaul held in his dissenting opinion that if the intent of the Special Marriage Act (SMA) was to facilitate inter-faith marriages, then there would be no rationale nexus with the classification it makes, i.e., excluding non-heterosexual relationships. In his minority judgment, he held that the SMA is violative of Article 14. The Special Marriage Act, 1954, was enacted with the object and purpose of providing a progressive and secular legal framework for “any two persons” to solemnize their marriage under the law, irrespective of societal prejudices and archaic beliefs.
The fact that it was aimed to allow any two persons to marry is substantiated by its coverage within its ambit, permitting the marriage of any two persons even of the same faith and not restricted to inter-faith couples. It may be argued that, similar to the Marriage Act of 1949 in the UK, the Special Marriage Act of 1954 serves as India’s civil marriage law. Unlike personal laws, this Act can be applied to anyone, regardless of the person’s faith or lack thereof.
The court in the present case acknowledged the discriminatory nature of the Special Marriage Act, 1954, as it discriminates between homosexuals and heterosexuals. However, the court refused to strike it down, expressing concerns that doing so would regress society to a position before independence.
The present judgment did not provide any legal recognition to the marriage of same-sex couples, and the majority judgment effectively compels young queer Indians to remain in the closet and lead dishonest lives if they wish to experience the joys of a real family. A review petition has been filed against this constitutional bench judgment. Hence, the battle for legal recognition and equality in marriage is still ongoing.
Shashank Patel
[The author, Shashank Patel, is currently pursuing his Master’s (LL.M.) at the South Asian University in New Delhi, India. He completed his graduation from the University of Lucknow, India. Known for his dynamic personality, Shashank has a keen interest in research and enjoys engaging in creative works. Throughout his undergraduate years, he demonstrated his passion for socio-legal issues by writing research papers and articles, often involving critical analysis of contemporary socio-legal matters.
Shashank has been actively involved in various activities and has achieved recognition through awards in moot courts, article writings, and debate competitions. His commitment extends to working in the field of social security and human rights, as evidenced by his internships at the Supreme Court of India, High Court, National Human Rights Commission, State Legal Service Authority, Legal Aid Committee, and various NGOs.]
