The Supreme Court’s Marriage Equality Judgment – III: Judicial Creativity and Justice Kaul’s Dissenting Opinion [Guest Post]

[This is a guest post by Masoom Sanyal.]

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Introduction

The Supreme Court has handed down its verdict in Supriyo @ Supriya Chakraborty v. Union of India (‘Supriyo’) or the Marriage Equality Case. By a majority of 3:2, the Court has held that (i) there is no unqualified fundamental right to marry under the Indian Constitution, (ii) there is no right to civil union available to unmarried couples, (iii) the Special Marriage Act (‘SMA’) is not violative of any fundamental rights, and (iv) the SMA cannot be read in a gender-neutral manner, in a way that would allow queer couples to marry under its provisions. The right to adoption has also been denied to unmarried couples by the Court. A unanimous Court has, however, held that transgender and intersex persons may marry under the SMA, so long as such a marriage is heterosexual.

Justices S Ravindra Bhat, Hima Kohli, and P S Narsimha wrote the opinion for the majority. Chief Justice Chandrachud and Justice S K Kaul wrote the minority opinions. Interestingly, Justice Kaul is the only justice on the bench who finds the Special Marriage Act violative of Article 14 of the Constitution. However, he does not strike it down; instead, by exercising an unprecedented form of ‘judicial creativity’ he makes it workable in line with the fundamental rights. This article analyses Justice Kaul’s judgement and the creative approach he has employed in order to remedy the defect of ‘unconstitutionality’ of the Special Marriage Act. There are 2 remarkable aspects of the judgement: (i) determination of legitimacy of the aim of the statute; and (ii) extending the statute’s operation to a distinct class of people by employing a creative approach.

The Unconstitutionality of the SMA: Illegitimate Objective

The test of reasonable classification under Article 14 is a two-pronged test: (i) the classification made must be based on an intelligible differentia, i.e. there must be a clear and intelligible difference between the classes, and (ii) the classification must have a reasonable nexus to the objective sought to be achieved by the statute.

Justice Kaul notes that the SMA creates two distinct and intelligible classes of people, by implication: the first class is that of heterosexual partners who are eligible to get married under the Act, while the second class is that of non-heterosexual individuals who are ineligible to marry under the Act. After referring to the scope and object of the Act, Justice Kaul observes that it postulates a ‘special form of marriage’ available to any person in India, irrespective of faith. In Justice Kaul’s opinion, the intent of the SMA was not to regulate marriages on the basis of sexual orientation. (In fact, doing so would be violative of Article 15 as well, since, per Justices Kaul and Chandrachud’s understanding, ‘sex’ in Article 15 includes ‘sexual orientation’. The Majority’s opinion does not appear to have addressed this point at all.)

In Justice Kaul’s mind, if the object of the statute is to facilitate inter-faith marriages, a classification based on sexual orientation of individuals can have no rational nexus with it. Further, if the objective is to regulate only heterosexual marriages, Justice Kaul holds that such an objective cannot be a ‘legitimate state objective’ on the ground that it would be violative of Article 15, which includes discrimination on the basis of ‘sexual orientation’ as well. Justice Kaul, in no unclear terms, declares the SMA unconstitutional and violative of Article 14 (Para 16). Here is the first unusual aspect of the judgement. Generally, Courts are reluctant to question the state’s aim in enacting a statute; usually, only two questions are looked into when satisfying the two-pronged test of reasonable classification under Article 14, as noted above: first, whether there is an intelligible differentia; and second, whether it has a rational nexus with the aim of the legislation. It is rare, even for a Constitutional Court, to venture into the arena of holding the aim of the legislation itself illegitimate.

However, he then takes a curious and intriguing turn. A prayer of the petitioners was that instead of striking down the SMA as unconstitutional, the Court must read it in a harmonious manner, and provide a gender-neutral reading of the Act, in order to include non-heterosexual partners within the ambit of the law. Justice Kaul notes that “there are multifarious interpretive difficulties in reading down the SMA to include marriages between non-heterosexual relationships.” (Para 17)

In short, a gender-neutral reading of the Act is not possible since the legislature has used clear and unambiguous words. According to Chief Justice Chandrachud’s opinion, such substantial reading would be beyond the powers of a Constitutional Court, and if the Court carried out such an exercise, it would invariably venture into the legislative domain, thereby violating the doctrine of separation of powers. Justice Kaul concurred with the Chief Justice on that point.

Judicial Creativity: Extending the SMA to Same-Sex Couples

However, Justice Kaul, in Para 18 of his judgement, lays down a curious position of law. He writes, “[I]t would not be prudent to suspend or strike down the SMA, given that it is a beneficial legislation and is regularly and routinely used by heterosexual partners desirous of getting married. For this reason, this particular methodology of recognizing the right of non-heterosexual partners to enter into a civil union, as opposed to striking down provisions of the SMA, ought to be considered as necessarily exceptional in nature.”

Chief Justice Chandrachud and Justice Kaul’s minority opinion lays down that non-heterosexual couples have a fundamental right to civil union that the state is under a duty to recognize. In line with that, Justice Kaul employs a creative interpretive technique, for which he cites the South African Constitution which contains an explicit provision that all statutes must be interpreted in ‘due regard to the spirit, purport and objects’ of the chapter on fundamental rights. Justice Kaul argues that we, in India, must adopt a similar approach to statutory interpretation.

By applying this technique of statutory interpretation, Justice Kaul observes, “In this context, legislations that confer benefits on the basis of marriage should be construed to include civil unions as well, where applicable.” (Para 26) Therefore, Justice Kaul’s judgement has the effect of stretching the ‘bouquet of rights’ available to married couples to the non-heterosexual civil unions. The remarkable part about this judgement is that a rather rare approach is taken here, by using a principle of statutory interpretation that finds an explicit mention in the South African Constitution, and importing it into Indian jurisdiction.

Conclusion

Justice Kaul’s judgement, albeit a dissenting opinion, is remarkable. It grants the recognition to non-heterosexual civil unions as well as extends to such civil unions all applicable rights that are available to married couples. It holds the SMA’s application only to heterosexual couples as violative of test of reasonable classification under Article 14 of the Constitution. He ventures into the area of determining the legitimacy of the aim and objective of a statute itself. Further, instead of striking down the statute, he remedies the constitutional violation by introducing a creative technique of statutory interpretation that he imports from South African constitutional principles. It is submitted that this technique of statutory interpretation should gain more currency in the Indian context. There has been some debate around this approach. A question that has been asked is whether such judicial creativity should be permissible? In other words, how much judicial creativity is too much judicial creativity? It is submitted that judicial creativity, so long as it is in order to protect fundamental rights and the Constitution, and within the scope of the judicial role, should be encouraged.