The Supreme Court of India on 17 October 2023 delivered its long-awaited judgement on the legality of same-sex marriages in the country. The 3:2 majority verdict refused to recognise the bouquet of rights emanating from a civil union, denying same-sex couples the right to gain socio-legal acceptance through marriage. This blog argues that by doing so, the judiciary has left important constitutional questions of interpersonal autonomy, privacy, and dignity in the sole custody of the Parliament, giving them a free hand.
The majority opinion reasons that by allowing same sex marriages in India, it wades into territory reserved for the legislature, creating a “parallel” right-regime through mere judicial diktat. The Court instead prefers to take an impact-based approach, offering to fix exclusion faced by queer persons arising only from the “impact” of discriminatory laws. This is almost to say that one sees the cause, yet only recognises its effect, meaning that constitutional adjudication is reduced to a “whack-a-mole” system.
The Supreme Court’s refusal to recognise marital union as part of Article 21 has therefore required it to not just protect queer persons from public disapproval, but even heterosexual individuals consenting to marriage or cohabitation. This is seen in cases such as Shafin Jahan and Sandeep, where the judiciary had to tutor lower courts on the basics of the Indian Constitution: that an adult woman’s right to make autonomous decisions was not one the State had locus to question. When the judiciary gets cold feet, the legislature in turn gets a free hand to in line with their political agenda. Take, for example, the “Anti Love Jihad laws” that have legitimised a deeply Islamophobic campaign policing interfaith marriages in the country. Not only do such laws target a singular (religious) demographic, they also allow governments and their respective propagandas to decide which marriages are to be considered socially acceptable and which are not. This enables the state to interfere with adult persons’ choice and autonomy under the garb of false and discriminatory grounds like “love-jihad”, striking at the very heart of the fundamental right to privacy bolstered in Navtej Singh Jauhar.
The majority opinion has another major flaw. It recognises marriage between cisgender and transgender persons which, on the face of it, seems affirming in its progressiveness. However, by endorsing this as marriage between a “man” and “woman” while rejecting same sex couples’ right to marry within the same judgment, the Court peddles an exclusively heterosexual, and by extension discriminatory, understanding of marriage that reinforces centuries of socio-legal ‘othering’ faced by the community.
The court’s characterisation of its role runs contrary to its past jurisprudence. More than creation of law, the judiciary is tasked with threshing out anachronisms from the fabric of law and slowly weaving a more inclusive and progressive narrative. In Joseph Shine, for example, Justice Nariman observed how an archaic law becomes manifestly arbitrary if it outgrows its purpose; and in becoming arbitrary, it fails the test of constitutional morality and thus should be phased out. Similarly, marriage was recognised as a sacrosanct cocoon of two consenting adults fortified by privacy, dignity, and interpersonal autonomy, with the Court categorically observing how State intervention in the intimacies of marriage has a chilling effect on their fundamental right of choice. By denying an entire class of Indian citizenry the right to marry, and allowing public morality to eclipse its constitutional counterpart, the Supreme Court has regressed rather sharply from its past jurisprudence and the very purpose of constitutional adjudication. It has also failed in its duty of paving a path for the legislature to walk on – the way it did in judgments like Visakha, Navtej Johar and Sabarimala – that envisioned a transformative Constitution.
Unless the Apex Court recognises the right to marry as not just a creation of statute but as directly flowing from Part III of the Constitution, State and society shall continue to serve up the lives of those who choose to go against conventional marriage norms as a topic of public and legal debate.