This is the first in a series of pieces on the Supreme Court’s marriage equality judgment.
This week, the Supreme Court delivered its judgement in Supriyo @ Supriya Chakraborty v. Union of India, accepting the existence of the manifold disadvantages faced by non-heterosexual couples, while simultaneously refusing to express such disadvantages in the language of constitutional transgressions, or to grant the petitioners any relief other than affirming the Union’s vague promise of a “High-Powered Committee”.
In this series, I propose that the instant case constitutes an immense setback in at least three aspects of fundamental rights jurisprudence – unenumerated rights, positive rights, and permissible classifications – whose many well-settled propositions have been substantially eroded in the court’s pursuit of institutional abstention. Before I begin, it must be noted that the court has laid down the following propositions:
- Unanimously, that marriage cannot be elevated to a fundamental right, and the deprivation of a “right to marry” cannot be assailed under Articles 19(1)(a) or 21 of the Constitution;
- Unanimously, that Section 4 of the Special Marriage Act, 1954 (“SMA”) and Section 4 of the Foreign Marriage Act, 1969 (“FMA”), which conceptualise marriage thereunder heteronormatively, are valid;
- With a 3:2 split (Justices Bhat, Narasimha and Kohli speaking for the majority), Section 57(2) of the Juvenile Justice Act, 2015 (“JJ Act”), which confines adoption rights to “couple[s]”, refers only to married couples. Regulation 5(3) of the Adoption Regulations, 2022, which prescribes “two years of stable marital relationship” as an eligibility criterion for adopting, is intra vires the JJ Act;
- Unanimously, that the effective prohibition on queer couples jointly adopting a child is indirectly discriminatory. With a 3:2 split (Justices Bhat, Narasimha and Kohli, speaking for the majority), such indirect discrimination – along with other disadvantages faced by queer couples – must be “suitably redressed and removed by the State”, and cannot be remedied through the judicial route;
- With a 3:2 split (Justices Bhat, Narasimha and Kohli, speaking for the majority), a combined reading of Articles 19(1)(c), 19(1)(e), 21 and 25 does not warrant the imposition of a “positive obligation” on the state to recognise a “civil union” of same-sex couples;
- Unanimously, that transgender persons in heterosexual relationships can marry both under personal law and the SMA.
In this series of pieces, I examine the judgement on the first four counts, arguing that it constitutes, overall, an attempt by the court to justify its institutional abstention through delegitimising the petitioners’ case. This is done through denying the existence of a right to marry, misidentifying the classification’s subject-matter, and creating artificial barriers on the court’s ability to transform social structures. In this piece, I examine the first mode of delegitimisation – the denial of a right to marry – arguing that such denial was achieved through the creation of three never-before-seen standards, which were specifically tailored to reach the conclusion of the non-existence of a right to marry. I also propose that the issue of the right to marry was designed as a red herring, and adherence to existing constitutional doctrine that prefers an examination of a restriction’s reasonableness instead of a right’s existence would have yielded a better, constitutionally-compliant outcome.
I make this argument in the following manner – first, I examine the three opinions on the right to marry, laying down and clarifying the standards employed therein; second, I propose that the three standards are largely unfounded, in that they have no basis in case-law, and make little logical sense when applied to unenumerated rights already elevated as fundamental; and third, I propose that the question of the right to marry was unimportant, and the case could have been decided in reference to existing doctrine, where the Court assesses a restriction’s validity instead of a right’s existence.
A Restrictive Conceptualisation of Unenumerated Rights – the Court on the Right to Marry
The petitioners, based on precedent locating marriage in the values of expression, dignity and autonomy, urged the existence of a right to marry under Articles 19(1)(a) and 21 of the Constitution, which the state was unjustifiably restricting for same-sex couples u/s 4 of the SMA. Such unjustifiability arose due to its incompatibility with the “decency or morality” clause under Article 19(2), which had been previously interpreted by the Court to mean “constitutional morality” instead of “public morality”. Additionally, it was argued that the restriction impinged on same-sex couples’ dignity without fulfilling the proportionality standard, for the Union failed to demonstrate even a “legitimate state aim” for restricting marriage to heterosexual couples distinct from “bare animus against the LGBTQ+ community”.
The court rejected this argument at its very first prong, holding that there exists no right to marry under the constitution, rendering an assessment of the validity of its denial to same-sex couples unnecessary. The three judgements (Justice Kaul, concurring with CJI Chandrachud) offer their own, separate reasons in refusing to elevate marriage to the level of a fundamental right. Justice Bhat finds the state’s non-involvement in the creation of the marital institution fatal (¶45-6); CJI Chandrachud finds the state’s excessive involvement in creating the contemporary significance of marriage fatal (¶183); and Justice Narasimha finds the persistence of “customary practices and religious beliefs” governing marriage as demonstrating its status as ab-initio restricted, rendering moot the question of its status as a right (¶12).
Justice Bhat, writing for the majority, offers two reasons to deny marriage the status of a fundamental right –first, that marriage is prior to, and external to the state, for the state only “utilize[s] or accommodate[s]” a wholly independent structure; and second, since marriage is a non-state institution, any recognition of a “fundamental right to marry” requires a horizontal conceptualisation, a task the Court cannot undertake:
45. …[M]arriage existed and exists, historically and chronologically in all of the senses – because people married before the rise of the state as a concept. Therefore, marriage as an institution is prior to the state, i.e., it precedes it…This implies that the marriage structure exists, regardless of the state, which the latter can utilise or accommodate, but cannot be abolished as a concept. Under this view terms of marriage are set, to a large extent, independently of the state. Its source is external to the state. That source defines the boundaries of marriage. This implies that state power to regulate marriage does not sit easy with the idea of marriage as a fundamental right…
46. If indeed there is a right to marry unless it is elevated to a right akin to Articles 17, 23, and 24, [which apply to both state and nonstate agencies and actors], it cannot be operationalized…
For Justice Bhat, therefore, for an unenumerated right to be elevated to the level of a fundamental right, its existence – at least in part – must be owed to the state, and its effectuation must not require the creation of norms governing non-state persons. Essentially, in his view, it is the state’s non-involvement in the creation of the marital institution that prevents access thereto as a fundamental right.
On the other hand, CJI Chandrachud offers substantially contrary reasoning to disqualify marriage from the status of a fundamental right. He finds that instead of the state-independent existence of marriage, it has been the state’s active involvement in creating conditions of the contemporary significance of marriage that caused a demand for its constitutionalisation in the first place. The “non-constitutional” origin of the reasons necessitating the elevation of marriage to a fundamental right, in his opinion, prevents such elevation (¶183). In buttressing his claim, he lays down two factors to determine when an unenumerated right may be elevated as fundamental – first, a specific fundamental right must be incapable of being properly effectuated in the absence of the unenumerated right; or second, the unenumerated right must be central to “values or the identity of the Constitution” (¶160-1). In his opinion, the right to education was deemed a fundamental right in Unni Krishnan v. State of Andhra Pradesh for no reason other than its centrality to the “values that the Constitution espouses”, while privacy was deemed a fundamental right in Puttaswamy v. Union of India independent of the “content given to privacy by the State” (¶184). He notes that the reasons necessitating marriage’s elevation to a fundamental right have been coloured by the state’s conferral of “material and expressive” benefits on the marital union, an insufficient justification for elevation:
184. The arguments of the petitioners that the Constitution recognises a right to marry is hinged on the meaning accorded to marriage by statutes, which cannot be accepted.
Justice Narasimha finds yet another reason why marriage cannot be deemed fundamental – even though the state has legislated on marriage, such as by providing minimum marriageable ages, prohibited relations and modes of succession, such legislation almost always accommodates customary and religious practices governing the same. Such accommodation of religious norms in marriage, in his opinion, means that marriage is ab-initio restricted, rendering moot the question of a right:
12. In my considered opinion, the institutional space of marriage is conditioned and occupied synchronously by legislative interventions, customary practises, and religious beliefs…Given this nature of marriage as an institution, the right to choose a spouse and the right of a consenting couple to be recognized within the institution of marriage, cannot but be said to be restricted.
From these three opinions, the following propositions emerge – first, a right external to the state, or having an origin that predates the state, cannot constitute a fundamental right; second, an unenumerated right, whose contents have been coloured by state action, cannot constitute a fundamental right; and third, a right attached with pre-existing religious or customary limitations cannot constitute a fundamental right.
Three Standards of Apocryphal Origin – Assessing the Court’s Treatment of the Right to Marry
The imposition of such restrictions in elevating unenumerated rights to fundamental rights, it is submitted, are wholly unfounded, and are products of expediency, not constitutional doctrine. In no prior case has the court employed Justice Bhat’s tests assessing the temporal emergence of the impugned unenumerated right with the emergence of the state, or CJI Chandrachud’s test of a right “coloured” by state action being ineligible to constitute a fundamental right.
The court’s standard for elevating unenumerated rights to fundamental rights has been consistently liberal, for it has elevated unenumerated rights to this status regularly, even when the implications of such elevation are remotely foreseeable or make little conceptual sense. G. Soundarajan v. Union of India, for example, recognised the “right to development”, achieved through the establishment of a nuclear power plant, as a fundamental right (184); Association for Democratic Reforms v. Union of India read the “right to know” into free expression under Article 19(1)(a) (¶44); Unni Krishnan, as stated above, recognised the right to education under Article 21; Satwant Singh v. Passport Officer recognised the “right to travel abroad” under Article 21 (¶57); Amit Sahni v. Commisioner of Police recognised a general “right of commuters” as a fundamental right, which trumped protestors’ right to assemble peacefully under Article 19(1)(b) (¶19); R.L.E.K. v. State of Uttar Pradesh – along with a slew of environmental litigation judgments – has recognised a general “right to clean and healthy environment” under Article 21; and in Anoop Banarwal v. Union of India, Justice Rastogi has recognised the right to vote as a fundamental right “flow[ing] through Article[s] 15, 17, 19, 21” (¶68).
Travel, education, commutation, and the environment, it is submitted, are external to the state, and predate the state – but have still been conferred with a fundamental right status. Further, CJI Chandrachud’s test of a prior colouring of the impugned unenumerated right, if applied to the above cases, would mean that neither the right to education, nor the “right to know” would be fundamental rights, for both Unni Krishnan (¶86-90) and ADR (¶7, 9-10) extensively document the role of state agencies in materialising these imperatives.
I now address the judgement of Justice Narasimha, which proposes that a right substantially intertwined with religious and customary restrictions cannot be deemed fundamental. He notes that legislation governing marriage – both religious enactments and the SMA – save uncodified religious custom, which in turn imposes many restrictions on marriage (¶7-12). This conceptualisation, it is submitted, is regressive, and marks a setback in the judicial pursuit of democratising the “private sphere”. The architecture of personal laws in India is such that it enables the coexistence of religious custom alongside many legislative and judicial modifications. Laws governing marriage and permitting custom are of the kind that they legislatively entrench custom as the decision-making rule to decide particular outcomes – Section 6(3) of the Hindu Succession Act, 1956 requires classical Hindu law to be followed to determine coparcenary shares, and Section 5 of the Hindu Marriage Act, 1955 (“HMA”) permits the existence of legislatively-prohibited but customarily-accepted marriages. The situation envisioned u/s 5 of the HMA, Justice Narasimha notes, is similarly present in the Parsi Marriage and Divorce Act, 1936, and the Indian Christian Marriage Act, 1872 (¶9). More importantly, he notes that the Muslim Personal Law (Shariat) Application Act, 1937 (“Shariat Act”) also mandates the use of custom to decide norms of marriage (¶9).
In Shayara Bano v. Union of India, Justices Nariman and Lalit have noted the Shariat Act, which also saved the application of uncodified Muslim law to mattes of divorce, caused the conferral of a statutory status to such custom, for the state authorized the use of custom as the sole “rule of decision” (¶47-8). This meant that was no appreciable difference between a piece of legislation prescribing norms for divorce itself, and a legislation authorising custom to make the final call. Custom for marriage, akin to custom for divorce, must be treated as statute its application is secured solely by the latter. The persistence of custom in matters of marriage, therefore, cannot serve as a justification per se to deny marriage the status of a fundamental right. Further, the principle saving uncodified personal law from fundamental rights challenges, laid down in Narasu Appa Mali v. State of Bombay, has been referred for reconsideration in Indian Young Lawywers’ Association v. Union of India, indicating that its limited constitutional immunity might not even be long lived.
This brings us to the argument of Justice Narasimha that remains – marriage is ab-initio “restricted” – by custom or otherwise, preventing its elevation as a fundamental right. Two objections may be laid to this – first, like the tests on elevation propounded by Justice Bhat and CJI Chandrachud, this test is also of apocryphal origin, never having been invoked prior; and second, it presumes, without justification, that an entitlement existing alongside restrictions cannot constitute a right. On the second objection, it must be noted that the nature of rights is such that they materialise with numerous limitations, and an approach denying the existence of a right based on its presently limited materialisation risks perpetually entrenching the status quo. This approach, effectively, is contrary to CJI Chandrachud’s – while he states that an entitlement cannot constitute a right if its contents possess an origin external to the constitution, Justice Narasimha standard assesses only the entitlement’s contemporary operationalisation, which – if found riddled with obstacles – negates its claim to a right. Further, in case this standard were to be adopted, it would be hard to justify the existence of a right to privacy in the dawn of widespread surveillance, or a “right to clean and healthy environment” in cities that are the world’s most polluted.
The Right to Marry – Does it Matter?
The question of the existence of a right to marry, however, is a red herring. The existence of a specific unenumerated right need not be demonstrated by a petitioner when they experience a violation of their dignity, privacy or autonomy. The question, instead, is whether the present state action (which, in our case, is Section 4 of the SMA/FMA) is such that it infringes a pre-existing fundamental right of the petitioner, and not whether the petitioner has a right to exactly what the state action prohibits. In other words, if state action prohibits activity “X”, which puts the petitioner on a disadvantage in terms of their dignity or privacy, the question is not whether the petitioner has a right to do exactly “X”, but only whether the impugned state action infringes the petitioner’s general fundamental right to dignity or privacy under Article 21. Once this basic minimum task has been fulfilled by the petitioner, the burden shifts on the state to justify its restriction, which it may do in accordance with principles of proportionality. In Akshay Patel v. Reserve Bank of India, for example, the petitioner did not have to show the existence of a specific right to sell PPE kits under Article 21, showing only an infringement thereof in light of state action regulating such sale (¶29); in Re: Ramlila Maidan Incident, the petitioners only showed an infringement of their personal liberty due to state action evicting persons sleeping peacefully, not having to show how the constitution guarantees an explicit “right to sleep” (¶38); in State of Maharashtra vs Prabhakar Pandurang, the petitioner detenu only showed how state action preventing him from sending a book outside prison infringed his personal liberty, not having to show how a “right to write a book” is a fundamental right (¶8); and in Francis Coralie Mullin v. Administrator, the court noted that a meeting one’s lawyers and family while in prison would also constitute a fundamental right, not imposing the burden to show its existence on the petitioner (¶8).
What, however, about the right to privacy, whose existence has been debated by a long line of cases? I submit that case-law dedicated to hollowing the scope of a right, instead of examining the validity of state-imposed restrictions, is largely disingenuous, and enters this discussion primarily in pursuit of justifying state action by negating the existence of a right. M.P. Sharma v. Satish Chandra denied the existence of a right to privacy in order to buttress the validity of CrPC-conferred powers of search, and all ERP jurisprudence – whose epitome is found in Ananda Margis (II) – seeks only to ease state intervention in religious affairs by mandating each petitioner to demonstrate their religion’s foreseeable dismantling without the impugned practice. In asking the petitioner to demonstrate the existence of a specific right, the Court turns the table of burdens, rejecting a challenge at its very inception by creatively crafting the right’s non-existence.
In the instant case, the Court’s discussion on the right to marry suffers from the same malaise – its denial thereof seems specifically designed to defeat the petitioners’ case even before it begins. Three judges develop novel standards to determine when unenumerated rights warrant elevation as fundamental rights, with the three standards – if applied to past doctrine – would likely result in the deletion of many rights already read into Article 21. Additionally, the standards make little sense when applied inter-se – while CJI Chandrachud holds that an entitlement cannot constitute a fundamental right if its contents are coloured by “non-constitutional factors”, Justice Narasimha effectively requires the very same “non-constitutional factors” to enable a substantially unrestricted materialization of the entitlement. Further, Justice Bhat’s prohibition on a right preceding the state is equally suspicious, for many entitlements, as discussed above, have originated independent of the state.
On this basis, I submit that the reasoning offered in refusing to deem the right to marry fundamental is highly questionable, for the standards laid down have little basis in case-law, yielding contradictory results when applied to previously elevated entitlements. At the heart of the judgement lies the court’s pursuit of institutional abstention, with such abstention being justified through a delegitimisation of the petitioners’ case – the first mode of which was denying the existence of a right to marry. This question itself was unnecessary, and designed as a red herring to further justify the continued violation of dignity of non-heterosexual persons. The message, therefore, is that there exists no right for non-heterosexual couples to assert, obviating any discussion of its persistent violation. It also means that some violations of dignity are more valuable than others, for legal standards exist, or be created conveniently, to craft a denial of dignity as lawful.
Kartik Kalra is a student at the National Law School of India University, Bengaluru.
This article first appeared on the blog Indian Constitutional Law and Philosophy. Read the original here.
This article was first published on The Wire by Kartik Kalra.