On 17 October 2023 the Indian Supreme Court delivered a much-anticipated judgment, Chakraborty v Union of India, on a fundamental matter of LGBTQ+ equality: legalising same-sex marriage. The court ruled unanimously that it could not legalise same-sex marriage. Four of a bench of five judges delivered judgments in the case and could not even agree to issue simple directions protecting the basic liberties of LGBTQ+ persons.

Suneet Sharma

Suneet Sharma

Background

This most anticipated case was heard in the backdrop of the decriminalisation of intercourse between those of the same sex, as established just five years ago in the case of Navtej Singh Johar. In Navtej the Supreme Court unanimously held section 377 of the Indian Penal Code 1860 was unconstitutional.

In Chakraborty 'the petitioners contend[ed] that the State through the operation of the current legal regime discriminates against the queer community by impliedly excluding the queer community from a civic institution: marriage.'

The petitioner sought to bring an action that the court declare that LGBTQ persons have the right to marry a person of their choice regardless of religion, gender and sexual orientation. The petitioners also sought that the court declare that provisions of the Special Marriage Act, and associated legislation, violated the rights and dignity of LGBTQIA+ persons, in breach of the equality code of the Constitution, Article 14, among others. Article 14 states 'The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.'

The respondents argued the court did not have the power to decide these issues and that such a decision can only be arrived at a process that reflects electoral will.

Judgments

The court passed comment on certain key topics of LGBTQ+ acceptance in considering the arguments placed before it, including its status as a natural phenomenon, that it was not urban or elite, the rise of Victorian morality in colonial India and the reasons for the reassertion of queer identity. In doing so the court dissected the common theme in the arguments of the respondents and bluntly rejected it; that a union between two persons of the same sex is not Indian. In the words of the court 'sexual and gender minorities are as Indian as their fellow citizens who are cisgender and heterosexual.'

Turning to the concept of marriage the court considered that there is no universal concept of marriage, and that marriage as a concept has evolved, citing many different concepts that marriage encompassed and its evolution, concluding 'the only facet of marriage which is constant across religion, community, caste, and region is that the couple is in a legally binding relationship – one which recognizes an emotional bond of togetherness, loyalty and commitment - that is recognised by the law. The law recognises the commitment that the couple has for one another by regulating the institution of marriage and conferring certain rights and privileges on them.'

The court considered marriage’s importance as a socio-legal institution, seeking to identify the nature of marriage rights and thereby determining whether marriage was a fundamental right under the Indian Constitution. In doing so it considered previous caselaw where rights had been found to be fundamental rights: Puttaswamy, privacy, and Unnikrishnan, education.

Such rights were considered to have both negative and positive characteristics, such that if marriage could be held to be such a right then it could mandate the government to establish marriage if the law did not provide for it.

The court considered the case of Obergefell, the US Supreme Court case that held that marriage was a fundamental right under the US Constitution. The court had found that, in not recognising same-sex couples’ marriage and affording rights enumerated upon them by marriage, there was a violation of the equal protection clause. In particular, Ravindra Bhat J. was critical of Obergefell.

The court determined that 'marriage may not have attained the social and legal significance it currently has if the State had not regulated it through law. Thus, while marriage is not fundamental in itself, it may have attained significance because of the benefits which are realized through regulation.' It is this finding, a common thread throughout the four judgments, that proved a death knell for arguments that the Constitution encompassed marriage as a fundamental right.

Speaking for a minority in the case, Chandrachud J., however, did consider the protection of LGBTQ+ persons at length, giving directions for the government to protect LGBTQ+ persons:

a. from discrimination,

b. ensuring equal access to public goods and services,

c. sensitise the public about the queer identity,

d. establish and publicise safe houses for those in the LGBTQ+ community who are facing violence or discrimination;

e. to cease conversion therapy for LGBTQ+ persons with immediate effect;

f. to protect intersex children from operations regarding their sex until they are of an age to understand and consent; and

g. to recognise self-identified gender of all persons including that no person shall be forced to undergo hormonal therapy.

He further directed that the government must release modules about the mental health of queer persons and issued substantive directions to the police to protect and ensure the equal treatment of LGBTQ+ people.

Sanjay Kishan Kaul, J, also stated 'Non-heterosexual unions and heterosexual unions/marriages ought to be considered as two sides of the same coin, both in terms of recognition and consequential benefits.'

However, these critical directions and statements were not agreed with by Bhat. J or the other majority justices. They are, therefore, directions of a minority of the justices of the court, whose weight and significance is yet to be seen. They hopefully provide a pathway to similar decision-making as Navtej Singh Johar. The court’s inactivity here provides much disappointment and concern to me as a member of the LGBTQ+ community.

Concluding, the court opined that 'an institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law.' Despite this finding certain rights associated with marriage, in particular the right to union, are protected by constitutional values.

In this vein, the establishment of a committee chaired by the cabinet secretary was directed by the court, whose purpose was to explore and define the scope of the benefits queer couples in unions were entitled to.

However, the court unanimously agreed that striking down or reading provisions into the Special Marriage Act and related legislation would amount to 'judicial legislation' which the court was unable to enact 'because of its institutional limitations'.

 

Suneet Sharma is a junior lawyer with experience from the Associated Press, BBC and a venture builder. He is has contributed to the INFORRM blog. All views expressed are personal

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