Same-sex marriage verdict: Points of agreement, divergence between the 5 Supreme Court justices

The Constitution bench judgment in same-sex marriage case presents an intriguing mix of views the five judges on the bench expressed, employing tools of interpretation and juristic outlook before rendering their final verdict on a spectrum of questions posed before them.

The judges were unison on some of the key aspects of the matter but sharply differed at some other decisive aspects, leading to a 3-2 majority that ruled against granting constitutional protection to civil unions and adoption rights for queer couples.

POINTS OF AGREEMENT

Queerness is not an urban, elitist concept

All the judges on the bench were unanimous that queerness cannot be branded an elitist concept predominantly present in urban areas – an argument raised by the Union government to challenge the petitions.

“Homosexuality or queerness is not solely an urban concept, nor is it restricted to the upper classes or privileged communities. People may be queer regardless of whether they are from villages, small towns, or semi-urban and urban spaces. Similarly, they may be queer regardless of their caste and economic location. It is not just the English-speaking man with a white-collar job who lives in a metropolitan city and is otherwise affluent who can lay claim to being queer but also (and equally) the woman who works in a farm in an agricultural community,” said CJI Dhananjaya Y Chandrachud in his judgment.

Agreeing, justice Kaul said that non-heterosexual unions were well-known to ancient Indian civilisation as attested by various texts, practices, and depictions of art. The judge cited illustrations from the Rig Veda, Somdatta’s Kathasaritsagara and Sufi tradition to note that these markers of discourse reflect that such unions are an inevitable presence across human experience. “It would thus be misconceived to claim that non-heterosexual unions are only a facet of the modern social milieu,” said justice Kaul.

Writing for himself and justice Hima Kohli, justice S Ravindra Bhat also said that queerness is a natural phenomenon that is neither urban nor elite.

No legal recognition to same-sex marriage within the fold of SMA

The bench was united in holding that judicial legislation is impermissible when it is for Parliament and state assemblies to recognise and regulate marital institutions in India, for there is a legitimate state interest in regulation of such relationships.

Striking down the provisions of the Special Marriage Act (SMA) for excluding same-sex couples, the CJI said, would take India back to the pre-Independence era were two persons of different religions and caste were unable to celebrate love in the form of marriage. “Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another,” he pointed out.

If this court takes the second approach and reads words into the provisions of the SMA, justice Chandrachud held, it would in effect be entering into the realm of the legislature.

Justice Kaul, in his separate judgment, maintained that the SMA is violative of Article 14 (equality) for non-heterosexual relationships. “However, I recognise that there are multifarious interpretive difficulties in reading down the SMA to include marriages between non-heterosexual relationships. As rightly pointed out by the learned Solicitor General, tinkering with the scope of marriage under the SMA can have a cascading effect across these disparate laws,” added the judge.

Justice Bhat, jointly with justice Kohli, wrote that the SMA sought to provide an avenue for those marriages that did not enjoy support in society, or did not have the benefit of custom to solemnise, it would be quite a stretch to say that this included same sex marriages. “Therefore, the challenge to the constitutionality of the statute, must fail,” he said. Justice Narasimha agreed with the reasonings in justice Bhat’s judgment.

No fundamental right to marry

There was unanimity of views among the five judges that there is no fundamental right to marry since it would obligate the State to create institutions.

“The petitioners seek that the court recognise 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,” said the CJI.

Justice Bhat wrote: “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.”

The right to marry is a statutory right, said justice Narasimha, adding: “There is no unqualified right to marriage guaranteed by the Constitution, that qualifies it as a fundamental freedom.”

“The claim of the right to marry, de-hors the existing statutory framework, is nothing but a claim to create a legally and socially enforceable status. It is nothing but a prayer of mandamus to create the necessary legislative and policy space for recognition of relationships as marriages in the eyes of law. The prayer to recognise such a right is not one that expects the State to desist from pursuing an act, but one which will place positive obligations upon the State to erect new laws, or at least amend existing laws,” added the judge

POINTS OF DISAGREEMENT

Right to civil union

CJI Chandrachud and justice Kaul ruled in favour of a right of queer couples to enter into a civil union. “The right to enter into a union includes the right to associate with a partner of one’s choice, according recognition to the association, and ensuring that there is no denial of access to basic goods and services is crucial to achieve the goal of self-development,” held the CJI.

For the right to have real meaning, justice Chandrachud added, the State must recognise a bouquet of entitlements which flow from an abiding relationship of this kind. “A failure to recognise such entitlements would result in systemic discrimination against queer couple,” he said. Justice Kaul concurred with him.

But justice Bhat had a sharp divergence of opinion. There are almost intractable difficulties in creating, through judicial diktat, a civil right to marry or a civil union, according to the judge.

“Ordering a social institution” or re-arranging existing social structures, by creating an entirely new kind of parallel framework for non-heterosexual couples, would require conception of an entirely different code, and a new universe of rights and obligations. This would entail fashioning a regime of state registration, of marriage between non-heterosexual couples; the conditions for a valid matrimonial relationship amongst them, spelling out eligibility conditions, such as minimum age, relationships which fall within prohibited degrees; grounds for divorce, right to maintenance, alimony,” he said

Agreeing with justices Bhat and Kohli, justice Narasimha, too, said that a right to a civil union or an abiding cohabitational relationship, conferring a legally enforceable status, cannot be situated within Part III (dealing with fundamental right) of the Constitution of India.

Granting a right to enter into a civil union, justice Narasimha said, is positively mandating the State to grant recognition or legal status to unions from which benefits will flow and is thus, violating the doctrine of separation of powers. “The framing of a positive right and the positive entitlements which flow therefrom, essentially require the State to regulate such unions and benefits. In my opinion, the direction in effect, is to amend existing statutory frameworks, if not to legislate afresh,” he said.

Adoption right for queer couples

The CJI and justice Kaul, in their two separate but concurring verdicts, declared one of the guidelines of the Central Adoption Resource Authority (CARA), prohibiting unmarried and queer couples from adopting, as unconstitutional.

The CJI, in his judgment, said there is no material on record to prove the claim that only a married heterosexual couple would be able to provide stability to the child. He said in fact, this court has already recognised the pluralistic values of our Constitution which guarantee a right to different forms of association.

The CJI said the law cannot make an assumption about good and bad parenting based on the sexuality of individuals. “Such an assumption perpetuates a stereotype based on sexuality (that only heterosexuals are good parents and all other parents are bad parents) which is prohibited by Article 15 of the Constitution”, said the CJI and justice Kaul agreed with him.

However, three other judges — justices Bhat, Kohli and Narasimha, disagreed.

When a couple adopts, they are jointly assessed, and in law, the responsibility falls on both parents, Justice Bhat wrote in his separate judgment. “To read the law in the manner adopted by the Chief Justice, with all due respect, would have disastrous outcomes, because the ecosystem of law as it exists, would be unable to guarantee protection to the said child in the case of breakdown of an unmarried couple, adopting jointly. This, therefore, would not be in the best interest of the child,” he said.

Justice Narasimha, in his separate judgment, said he agreed with justice Bhat with respect to the constitutionality of the CARA Regulations, 2020.

The majority judgment finally acknowledged that it is alive to the feelings of being left out, experienced by the queer community. “However, addressing their concerns would require a comprehensive study of its implications involving a multidisciplinary approach and polycentric resolution, for which the court is not an appropriate forum to provide suitable remedies,” it said.