A Historic Moment: Indian Supreme Court Same-Sex Marriage Decision

by | Jan 29, 2024

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Interviewer: Oxford Human Rights Hub

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In this week’s episode, we talk to Devina Malaviya, Associate Professor of Legal Pzractice and Assistant Dean in Clinical Legal Education at O.P. Jindal Global University. In this podcast, she discusses the recent case that was decided in the Indian Supreme Court, Supriyo v. Union of India on the legal permissibility of same-sex marriage. 

  • Executive producer: Meghan Campbell
  • Producer and editor: Sophie Smith
  • Host: Frances Hand
  • Music: Rosemary Allman
  • Show notes: Sarah Dobbie

00:00 – Francis Hand 

You’re listening to RightsUp, a podcast from the Oxford Human Rights Hub. My name is Frances Hand and I’m a podcaster here at the Hub. In today’s episode, I’ll be sitting down with Devina Malaviya, and we will be discussing a recent case that was decided in the Indian Supreme Court, Supriyo v. Union of India. Devina Malaviya is an Assistant Professor of Legal Practice and Assistant Dean in Clinical Legal Education at O.P. Jindal Global University. Devina’s interests lie in the area of family law, constitutional law and criminal law. After graduating from National Law University in Delhi in 2016, she worked as a law clerk, cum research assistant with Justice Kurian Joseph at the Supreme Court of India. Thereafter, she completed her Master of Laws at the University of Cambridge. She has also co-written a piece on the case that we’re discussing today, which can be found at the Oxford Human Rights Hub webpage.  

Hi, Devina, thank you so much for taking the time to talk to me today. 

 

00:59 – Devina Malaviya 

Hi, thank you so much for having me on this podcast.  

 

01:02 – Frances Hand 

So just to get us started, please can you just give us a brief background of this case and why it’s significant?  

 

01:08 – Devina Malaviya 

Right, so as you know the case, it concerns the plea for marriage equality and it has been decided by a constitution bench of the Supreme Court of India, which comprised five judges, including the Chief Justice of India. And this case was heard in around April, May of this year and the decision of the court was pronounced in October of 2023, again this year. And essentially what the court has done is that it has denied legal recognition for same-sex marriage in India under the Special Marriage Act, which was the legislation it was looking at. And this decision has been met with disappointment, not only, I would say, in terms of the conclusion that it reached. But, also in the manner in which the court arrived at that conclusion, the manner in which it engaged with interpretation of fundamental rights, as well as its own understanding of what its powers are as the apex court of India. So that’s something to point out.  

Another thing I’d just like to mention is the number of opinions which are there in this decision because during the podcast, I may refer to one or the other judges. So, in this case, there was four separate opinions. You had Justice Bhat, who was writing for himself and Justice Kohli, and that was the lead judgment for the majority. And it was also supplemented by the opinion of Justice Narasimha. And then you had the Chief Justice Chandrachud and Justice Kaul, who wrote their own opinions. And they dissented on some points with the majority. 

So, as we go through this podcast, I can explain the points on which there was unanimous agreement and then what were the points of disagreement. And lastly, something I’d also like to say is that this is a five-judge bench decision, as I mentioned previously. And of course, while there are certain points of disagreement, there is also unanimity on certain issues. For example, that there is no fundamental right to marry. As well as a recognition of institutional limitations of the Supreme Court. So given that it is a five-judge bench decision, it also remains to be seen as how this decision will have an impact on the future cases. And just to give you some context as to the significance of a five-judge bench decision, generally the Supreme Court of India it decides in benches of two judges. And then on issues which involve substantial questions of law, you have a constitution bench deciding them and they can comprise of five judges, seven judges, nine and so on. So just to sort of conclude in this context, the five-judge bench decision also assumes significance.  

 

04:07 – Frances Hand 

Yeah, I think it’s really interesting. It’s not something that I’ve come across in the work that I do. So just as a kind of small sub question from that, how rare is it to have a seven-judge bench?  

 

04:20 – Devina Malaviya 

So, actually, we have had constitution bench decisions prior to this as well. I mean, we’ve had in the last couple of years, we’ve had several constitution bench decisions of five judges. Higher than five would start becoming more and more rare. At some point, one of our very landmark decisions actually had 13 judges on it. So, five upwards, it obviously it becomes rarer. Now, if you have to overrule a five-judge bench decision, then you can have a bench of seven decisions. If you have to overrule a seven-judge bench decision, then you’ll have to have nine judges for that. So, it’s not the first time this has happened. In the last couple of years, we’ve actually had several constitution bench decisions of five judges.  

 

05:04 – Frances Hand 

Right. And then just linking back, so you mentioned about the Special Marriages Act of 1954. So why was the constitutional status of this so controversial?  

 

05:13 – Devina Malaviya 

So, in this case, the Supreme Court held that it cannot strike down the Special Marriage Act or read the Special Marriage Act in a way to include non-heterosexual unions within the ambit of marriage. And something that you would see in the judgment as well, it refers to a complex web of laws. And in India, when it comes to laws relating to marriage, divorce, succession, what we say, family law. Different communities are governed by their personal laws. So, for example, if you’re dealing with a marriage of two Hindu persons, you will have the Hindu Marriage Act. For two Muslim persons, you will refer to the Shariat. So different communities have their personal laws. And then you also have secular laws, like the Special Marriage Act. And you can avail of this law, irrespective of the faith that either party may profess. 

It’s also important to point out that there has been tension around the interpretation of personal laws in India. And in this case, the Supreme Court had restricted itself to the examination of the Special Marriage Act. But even then, the issue is a complex one. Firstly, because the Special Marriage Act is still linked to personal laws. For example, if two Hindus get married under the Special Marriage Act, then their succession will be governed by their personal law, which is the Hindu Succession Act. So, there isn’t an escaping from personal law even then in some aspects. And you also have provisions of the Special Marriage Act which are gender specific.  

In this particular case, there is no denying that reading this law, or the interpretation of this law was going to be a complicated exercise. And that’s really something that you see coming out in the opinion of the Chief Justice when he states that “reading words into the provision of the special marriage act and other allied laws would mean entering into the realm of the legislature”. And he said that “we can’t read into the special marriage act, we can’t read it into a way that will accommodate non-heterosexual marriages because the court is not equipped to undertake an exercise of such a wide amplitude because of its institutional limitations”, as he puts it. And the court would in effect sort of be redrafting the law.  

The other option according to the Chief Justice is to strike down the Special Marriage Act and to declare it void. But then that would take India back to a pre-independence era where people of different religions could not get married. So, you can see in his judgment that he feels as if the institution is very constrained to do anything over here. And there’s a lot of focus on the institutional limitations over here. 

Then you have Justice Bhat’s opinion as well and he says that he “cannot hold the Special Marriage Act as unconstitutional”. And without of course getting into too much detail, his opinion is, I would say, extremely disappointing as well as concerning from an equality jurisprudence perspective. I think the manner in which he has adjudicated on the compliance of this law with our equality provisions such as Article 14 of the Constitution, it is concerning, and it sets a problematic precedent. And even in his opinion, you can see that he’s saying that to read the Special Marriage Act in any other manner would be contrary to the established principles of statutory interpretation.  

Here, I would actually like to point out that it is the opinion of Justice Sanjay Kishan Kaul which is very interesting actually, because he disagrees with Justice Bhat in terms of how Justice Bhatt has looked at the Special Marriage Act and employed the tests to see if the law is in compliance with our equality provision. And he says that firstly, he disagrees with Justice Bhat that the sole intention of the SMA was to enable a marriage of heterosexual couples. According to Justice Kishan Kaur, “the Special Marriage Act, it postulates a special form of marriage which is available to any person irrespective of faith”. And he also says that “in any case, regulating only heterosexual marriage can’t be seen as a legitimate state objective”. And he actually goes on to say that “Special Marriage Act is violative of Article 14”, which is our equality provision. But then he says that “there are a lot of interpretative difficulties in reading the SMA in a manner that will include marriage of non-heterosexual persons”. So, he goes as far as to say that there is an Article 14 violation, but then is constrained to do anything about including non-heterosexual marriages within the ambit of SMA because of institutional limitations and concerns and the impact it will have on other laws.  

 

So yeah, once again, you know, I had started by saying that there’s no denying that this issue was a complicated one. But having said that, the Supreme Court of India is no stranger to interpreting provisions in a manner where they can be saved from unconstitutionality. You’ve had previous cases as well where the court may have engaged in a creative interpretation of law so as to ensure that it is not discriminatory. I think that is what also makes the decision more disappointing, because the court has engaged in these interpretations of law prior to this decision as well.  

 

11:11 – Frances Hand 

Yeah, I completely agree. I think India is one of those judicial systems where they’re one of the most creative. So, it’s quite interesting that in this one case, they’re suddenly hampered by all these limitations. So, let’s deep dive a little bit more into the right to marry and the right to civil unions. So, what did the Supreme Court hold on a fundamental right to marry and indeed whether there is a right to a civil union at all? 

 

11:35 – Devina Malaviya 

So, a unanimous conclusion actually in the Supriyo decision was that there is no fundamental right to marry. So, one thing is that, which I’d like to point out over here, is that this was actually not really the heart of the issue. Right, the main issue in Supriyo was if the special marriage act is discriminatory. Right? And the crux of the matter was that this was a challenge to the discriminatory exclusion of queer couples from the existing marriage regime. So, the court could have just decided on that as well. By now holding that there is no fundamental right to marry and the unanimity on that opinion, you can see the impact of this holding on this decision itself and what is its impact as a precedent, it remains to be seen in future cases. And the second thing, I just want to say, is the manner in which the court has gone about holding that there is no fundamental right to marry, right? And the manner in which the Chief Justice and then Justice Bhat have gone about in ruling that there is no fundamental right to marry is contrary to each other. 

So Justice Bhat finds that the state’s non-involvement in the creation of marital institution is a problem and he says that “marriage as an institution is prior to the state and it exists largely independent of the state” and he says that “marriage it predates the state” and this is not really sitting easy with the idea of marriage as a fundamental right. Whereas Justice Chandrachud finds the state’s involvement in creating the contemporary significance of marriage as a reason to say it’s not a fundamental right. So, you can see that these are very contrary opinions leading to the same conclusion. And the Chief says that “we need to ask if the institution of marriage is in itself so crucial that it must be elevated to the status of a fundamental right”. And he says that “an institution can’t be elevated to the status of a fundamental right based on the content which is accorded to it by law”.  

So, he gives the example of the fundamental right to privacy. In a landmark decision, the Supreme Court had held that there is a fundamental right to privacy. And he says that “if the right to privacy wasn’t secured, then a full purport of rights in the constitution would not be secured”. He gives the example of right to education and says that “the right to education is a fundamental right, not because of any statute or law, but because of its centrality to the values that the constitution espouses”. So, he tries to create a distinction.  

But I think this whole discussion of Justice Chandrachud as well as Justice Bhat, it’s really sort of showing you how the recognition of right as a fundamental right can be such a judge-centric exercise. The standards which are being used to see if something is elevated to the status of a fundamental right are very different from each other, right? And I think that is what is also, especially in a country like India, right? Where various unenumerated rights were recognized or elevated to the status of fundamental right. But you think we’d have a more coherent jurisprudence on recognizing an unenumerated right as a fundamental right because this is an exercise in which we have engaged before. You can see the lack of conceptual clarity; you can see the lack of an established standard because it’s one thing to have an established standard and then maybe apply it to judges could disagree on how an established standard applies to the facts of a case. But what’s happening over here is that your conclusions are the same, but the manner in which you’ve arrived at them are very different from each other on an issue which concerns recognizing something as a fundamental right.  

So yeah, I think this is, again, an issue which deserves a lot more discussion. And also, to see what impact will it have on future cases as well, right, when if the court is called upon to adjudicate if a particular right is a fundamental right in the future, what standard will be employed? So that’s something for us to think about.  

Now coming to a point of civil unions, this is where there is a disagreement within the bench. So, for the Chief Justice, who now will come in the minority, he says that the freedom of all persons, including queer couples, to enter into a union is protected by part three of the constitution, part three of our constitution deals with fundamental rights. And he says that “for this right to have meaning, the state has to recognize what he says are a bouquet of entitlements that flow from this relationship”. So, he says that “the state has an obligation then to recognize such unions and grant them benefit under law”. The majority in this case, which is led by Justice Bhat, he’s recognizing that queer couples have the right to a relationship. He says that. However, he disagrees with the fact that this will lead to a conclusion that the state has an obligation to recognize or give real meaning to the right. So that is where his disagreement is arising. And that is what then puts the Chief Justice in the minority.  

And again, something for us to think about something that I thought about when I read the judgment was that I felt like I did not entirely understand or see logical coherence in the Chief Justice’s opinion where he said that “there is no fundamental right to marry but there is a fundamental right to a union and that then creates an obligation on the state to recognise such unions and grant them benefits”. I, for one, am not able to see the coherence over here. It’s something which I feel is not clearly coming out in the decision. 

 

18:15 – Frances Hand 

So, leading on from that, there seemed to be such an interesting conversation happening about queer relationships. But could you talk to us a bit more about this one aspect of the judgment on queer parents’ right to adopt? 

 

18:28 – Devina Malaviya 

So, in this decision, the Supreme Court, it also declined the right of adoption to pair couples. Again, there’s a three-two split on that with three judges denying that right and two for that right. I’ll first speak of the minority opinion, and I think then we’ll be in a better place to understand where the majority is coming from.  

So, the law which was being looked at is regulation of the essential adoption resource authority. And as per that regulation, if a couple has to adopt a child, then they should have been in at least two years of a stable marital relationship. So, in this case, what the Chief Justice is saying is that the law cannot assume that only heterosexual couples can be good parents. Only heterosexual married couples can be good parents, this would amount to discrimination. And he also then goes on to discuss what is the primary objective of your law of adoption, right? And that is to safeguard the best interest of the child and ensure the proper development of the child, right? And the “respondents have not really placed any data to support their claims that only married relationships can ensure the best interest of the child. It can’t be inferred that couples who are not in a marriage relationship cannot provide a stable environment for a child to grow in”. And he says that “the stability of a house depends on various factors”, right? It doesn’t depend on only whether you’re married or not. And he then goes on to say that “there is absolutely no material on record to prove the claim that only married heterosexual couples would be able to provide stability to the child”. And something important that he also says is that “the law can’t make assumptions about good and bad parenting based on sexuality of individuals”. Such an assumption is essentially perpetuating a stereotype based on sexuality, right? And that is also prohibited by our constitution.  

This was the opinion of the Chief Justice and Justice Bhat then disagrees with this and he’s in the majority on this point. So, he says that the adoption framework, what it has done is that it has “considered the protections and entitlements that flow from the institution of marriage”. And it is in this context then that you need to see the objective of the law. The objective of the law is to ensure best interest to the child. And according to Justice Bhat, it is not to enable adoption for all. So according to Justice Bhat, the fact that the parliament made the legislative choice of including only married couples for joint adoption arises from the reality of all the other laws, right, where protections and entitlements of a relationship, they flow from marriage, right. So, in this sense, you can see almost a compounding of discrimination. You’re saying that there is no fundamental right to marry. You’re saying that you can’t read the special marriage act in a way to accommodate non-heterosexual relationships. And then you’re saying that, yes, we know our adoption framework it is providing the entitlement of joint adoption only to married couples. Right. And the reason it’s doing that is because a marital relationship has various protections and entitlements accorded to it. And that is why queer couples cannot adopt. Right. So, there is essentially a compounding of discrimination in this decision. And he is, Justice Bhat is saying that, you know, this is a matter which should, which is of concern, it should receive consideration. He does say that much, but this also tells you as to how discrimination compounds. When you have a society where a lot of legal protection, a lot of legal entitlements flow from marriage, but then there is no equal access to the institution of marriage. So, you will have multiple counts of discrimination then in such a setup.  

 

22:42 – Frances Hand 

Yeah, it feels like such a confusing aspect of the judgment. And then I think it only gets more confusing when they then talk about the idea of heterosexual-trans marriage versus homosexual marriage and the permissibility around that. Would you mind talking to us a little bit more about that area?  

 

22:59 – Devina Malaviya 

Right. So that’s an interesting part of the judgment where the court is again, unanimously saying that transgender persons in heterosexual relationships can marry under their personal laws as well as the Special Marriage Act. I think the reason that the court has been able to do this is because of various things that preceded this judgment. So, you had a landmark decision of the Supreme Court in NALSA versus Union of India, where the Supreme Court recognized the rights of transgender persons to identify by the gender of their choice. It recognized their rights under the Constitution. 

And then in 2019, you had the Transgender Persons Act. And that law prohibits discrimination against transgender persons. So, you can see that the court had this backdrop to work within. And it’s important to understand the decision then in this backdrop. And the Chief Justice mentions that he mentions section three of the Transgender Persons Act, which prohibits discrimination. And he also refers to the fact that the law prohibits to a Madras High Court judgment, which assumes significance here because you have a Madras High Court decision which has already held that the expression bride in the Hindu Marriage Act cannot have a static and immutable meaning. 

So, I think when the court has these precedents, and it has a legislative framework which is prohibiting discrimination against transgender persons. Whether that legislative framework is adequate or not is also a discussion to be had at some point. But I think within this framework, it was not too difficult for the court to hold this way. And I think he’s also, Justice Chandrachud is also then cognisant of the fact that if a transgender person is in a heterosexual relationship and wishes to marry their partner, and then each of them is meeting the requirements which have been set out in the applicable law, then such a marriage would have to be recognized. And this is because one party would be the bride and one party would be the groom. The court doesn’t have to work around the laws in a manner that it felt very constrained to do so when it came to recognizing non-heterosexual relationships. And it had the backdrop of NALSA, the Transgender Persons Act, the Madras High Court decision to work with as well.  

 

25:36 – Frances Hand 

Right, that’s so interesting. So yeah, so it’s still kind of fitting within that kind of old version of what marriage should look like in terms of male and female.  

 

25:46 – Devina Malaviya 

Right, absolutely. I think there is that recognition that the laws governing marriage are framed in the context of heterosexual relationships. And I think as opposed to recognizing that that is a discriminatory framework, which is what the court was required to do, right? But the court doesn’t want to do that. And then in this situation, it is saying that it can permit heterosexual-trans marriages, which is definitely a step forward, right? But it’s also important to see that the court has been able to do that because it had legislative provisions to refer to. It had a previous High Court decision as well in that direction, speaking in that direction.  

 

26:28 – Frances Hand 

Right. Well, this has all been so interesting. I feel like there’s so many issues that are being pulled apart in just one case. So, kind of just as a wrap up questions, so looking to the future, what do you think that this judgment, what effect do you think that this judgment will have on equality rights in India?  

 

26:49 – Devina Malaviya 

So, like I said, that this decision, it has been a setback, not only in terms of the final decision, the conclusion, but in terms of the manner in which it arrived at that decision in how it held the right to marry is not a fundamental right. The manner in which it arrived at that, the way the court has looked at the Special Marriage Act, and especially, I think, the way Justice Bhat has looked at it, it definitely raises concerns about the strides that were made in the equality jurisprudence, I think, in the last few years with decisions like Navtej Johar, Joseph Shine 

Also, I feel in terms of how the court has repeatedly emphasized on its institutional limitations. And again, there is no consistent jurisprudence on institutional limitations of the court. There have been times when, sorry, this is not to say that we should operate in a framework where there are no institutional limitations. But I think the problem with the Supreme Court is that it has not been consistent in terms of working within limitations. You have cases where The Supreme Court has framed guidelines where there was a complete absence of law. That time of the court has not been deferential to the legislature. And then you have a decision like this, right, where the court feels so constrained in terms of its institutional limitations. So, one can imagine as a litigant or even as an observer of the court, you don’t know what the position of the court is going to be, right, because there is no consistency. You don’t know if the court is going to be deferential to the legislature in your case, whether it will feel constrained in terms of what its powers are. I think this lack of consistency is a problem. 

Again, as I had mentioned right at the beginning that this is a constitution bench decision of five judges. So, overruling this decision, while certainly not an impossible process, we have had a constitution judge bench decisions being overalled in the past as well. While it’s not an impossible process, I do think that the court could have done far better, especially in the backdrop of decisions such as Navtej Johar, Joseph Shine, in the backdrop of how our equality jurisprudence has developed in the last few years, the court should have done better in this situation where the law is very clearly discriminatory. There should have been more deliberations on how it can best operate given the powers that the Supreme Court has and in light of its precedence. And in that sense, yes, the decision is definitely a major setback to the equality jurisprudence, as well as the jurisprudence on recognition of something as a fundamental right on how the court perceives its institutional powers. I think in all of these areas, it has seen a setback.  

  

29:49 – Frances Hand 

RightsUp is brought to you by the Oxford Human Rights Hub. The executive producer is Meghan Campbell. This episode was produced and edited by Sophie Smith and hosted by me, Frances Hand. Music for this series is by Rosemary Allman. The show notes for this episode have been written by Sarah Dobbie. Subscribe to this podcast wherever you listen to your favourite podcasts. Thank you for listening. 

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