The Supreme Court’s Marriage Equality Judgment – II: “Do I Contradict Myself?” [Guest Post]

[This is a guest post by Masoom Sanyal.]

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Introduction

Earlier this month, the Supreme Court delivered the much-awaited verdict in the case of Supriyo @ Supriya Chakraborty v. Union of India (“the Marriage Equality Case”). The Supreme Court has unanimously refused to recognize that non-heterosexual individuals have a fundamental right to marry. A total of 4 different opinions were delivered by Chief Justice Chandrachud, Justice Kaul, Justice Bhat, and Justice Narsimha, respectively. Justice Kohli agreed with Justice Bhat’s opinion. Together, Justices Bhat, Kohli, and Narsimha’s opinion forms the majority opinion, holding that there exists no fundamental right to marry (per Justice Narsimha, it is a freedom, not a right); in their opinion, nor is there a right to a Civil Union comparable to a marriage, under Article 19 and Article 21 of the Constitution. The Minority Opinion, comprising of Chief Justice Chandrachud and Justice Kaul, recognized the right to civil union inherent in Article 19, Article 21 and, surprisingly, also Article 25 (per Chief Justice Chandrachud).

The petitioners had challenged the constitutionality of Special Marriage Act (‘SMA’) as violative of Right to Equality insofar as it allowed only heterosexual couples to marry and excluded non-hetersexual couples. On that aspect, a majority of 4:1 has held the SMA as constitutionally valid. Justice Kaul, however, has held it to be violative of Article 14. Interestingly, Justice Bhat, too, in his Majority Opinion notes at multiple instances the discrimination accorded to the LGBTQ+ Community, but shirks away from the constitutional duty to remedy it, instead delegating it to the “High-Powered Committee” that the Executive has promised to constitute. Justice Kaul, too, does not strike down the SMA on the ground of it being a ‘beneficial legislation’ used by many heterosexual couples to get married. In this article, I critique the judgement of Justice Bhat, insofar as it finds discrimination against non-heterosexual individuals but stop short of remedying it. I argue that having found that discrimination exists, there is a constitutional duty upon the Court to remedy discrimination; there is absolutely no scope for exercise of slightest discretion with a Constitutional Court once it finds violation of fundamental rights and fundamental constitutional values.

An Analysis of Justice Bhat’s Judgement for the Majority

The Court was univocal on the aspect of a fundamental right to marry. Justice Bhat, writing for the majority, held that a right to marry does not automatically flow from the provisions of Part III of the Constitution, as the petitioners sought to assert (Para 50 of Justice Bhat’s Judgement). There is a unanimity between the judges on the point that the constitution does not expressly recognize a right to marry. The Court has refused to read into the provisions of Article 21 (or any other Articles) an unenumerated fundamental right to marry. Justice Bhat, however, disagrees on the point of there existing a fundamental right to a civil union (which Justices Chandrachud and Kaul recognised). Justice Bhat instead recognizes what he calls a ‘right to relationship’ within Article 21, which, in his mind, is different from a right to civil union. The difference, according to Justice Bhat, is that there exists a right to relationship, but there is no positive obligation upon the state to recognize such a relationship. State recognition is an aspect of the right to civil union, as the minority understands it. Justice Bhat disagrees with “the conclusion that all persons… have an entitlement to enter into a union, or an abiding cohabitational relationship which the state is under an obligation to recognize…”

On the challenge to the SMA, on the ground that it excludes non-heterosexual couples from its ambit and makes a heteronormative classification and is therefore discriminatory, Justice Bhat, after explaining the Test of Reasonable Classification, notes that “under classification” is not per se discriminatory. He notes that “exclusion or under inclusion, per se, cannot be characterised as discriminatory, unless the excluded category of persons, things or matters, which are subject matter of the law (or policy) belong to the same class (the included class).” He finds that the classification under the SMA does not violative the two-pronged test of reasonable classification. And on the point that the classification has been rendered discriminatory, due to passage of time, and therefore must be “read down” in a manner that has the effect of rendering it non-discriminatory, Justice Bhat finds the petitioners’ argument insubstantial. He holds that the object of the SMA is as valid today as it was when the law was birthed.

An Intriguing Aspect of the Majority’s Judgement: Finding Discrimination But Not Remedying It

There is a particularly intriguing aspect of Justice Bhat’s majority judgement. In Section VI of his opinion, Justice Bhat notes the “discriminatory impact” on queer couples. He analyses a long line of precedent to explain how discrimination can be meted out to a group of people without it being intended. He quotes the judgement in R C Cooper which noted:

“[I]n determining the impact of State action upon constitutional guarantees which are fundamental, it follows that the extent of protection against impairment of a fundamental right is determined not by the object of the legislature, nor by the form of the action, but by its direct operation upon the individual’s rights.” (Emphasis supplied)

Justice Bhat notes, in a manner that appears to contradict his own arguments in the previous section of the judgement, that:

The common feature of the “effect of the law and of the action upon the right” in R C Cooper and the decisions which applied the indirect discrimination lens, is that the objects (of the legislation or the policy involved) are irrelevant. It is their impact, or the effect, on the individual, which is the focus of the court’s enquiry. (Emphasis supplied)

He says that although the court had concluded previously that there is no fundamental right to marry, it cannot be oblivious of the various intersections which the existing law and regulations impact to queer couples (sic). He then goes on to return a finding of exclusion and discrimination specifically by saying that the law, insofar as it grants a right to marry and other rights flowing from that right to heterosexual couples but not to non-heterosexual couples, results in the latter’s exclusion. He specifically notes that “[t]he denial of these benefits and inability of the earning partner in a queer relationship, therefore has an adverse discriminatory impact.” (Para 114) He visualises certain specific instances as to how a heterosexual couple would be able to benefit from certain rights which a non-heterosexual couple would be denied (like insurance, provident fund, etc.), and writes, “[t]his injustice and inequity results in discrimination, unless remedial action is taken by the state and central government.” (Para 116) At the end of the section he notes that the Solicitor General had expressed the Union’s position that a High-Powered Committee will be formed to look into rights of non-heterosexual couples.

Here we see a strange abdication of the constitutional duty by the Court. Justice Bhat has found, in his own analysis, that the existing framework indirectly discriminates against non-heterosexual couples. There exists a long line of precedent, including cases like R C Cooper and Navtej Singh Johar, whereby the Court has laid down that it is the operation of the law on the individual and not the object that has to be seen when determining the violation of fundamental rights. Justice Bhat returns a finding of clear discriminatory impact on queer couples; but then, in an exercise of judicial abstention, refuses to remedy it. Instead, he sends the ball back in the Executive’s Court by asking the promised High-Powered Committee to look into the matter. This, it is submitted, is incorrect: there is no exception that allows the Court to excuse itself from the constitutional duty to remedy a wrong that it itself had found.

Conclusion

The Majority’s judgement has an inherent and tragic contradiction, coupled with an approach that may well amount to abdication of a constitutional duty. The Court makes explicit findings of discrimination against members of the queer community, caused by the lucanae within existing legal framework (a phenomenon that the courts have previously recognized and termed ‘indirect discrimination’; a long line of precedent has also established that the constitutional court has a duty to remedy indirect discrimination). The Court returns a finding of indirect discrimination against the members of the LGBTQ+ community, but, tragically, footballs the duty to remedy it to a Centre-appointed High-Powered Committee. The Majority’s opinion thus contradicts itself in a tragic way, and in the process, abdicates the constitutional duty of a Court to remedy a wrong.