Chief Justice Chandrachud states that the assumption that Article 15 only protects the status that a person is born with and not an identity they choose runs the risk of viewing persons as helpless individuals
Published Oct 24, 2023 | 10:36 AM ⚊ Updated Oct 24, 2023 | 11:09 AM
Representational Image. (iStock)
The Constitution does not expressly recognise a fundamental right to marry, Chief Justice DY Chandrachud said in his same-sex marriage case judgement. And then, in his 247-page verdict, he set out to find out why not.
A five-judge Bench of the Supreme Court on 17 October refused to give a nod to amend the marriage laws to grant legal recognition for same-sex marriages. The verdict said that a fundamental right to marry did not exist and left it to the lawmakers to legislate.
However, in his judgement, the Chief Justice explored various theories and practices and the contours of human relationships, marriage, and the heterosexual and non-heterosexual binary to arrive at specific eye-opening observations.
He consciously makes a distinction between “marriage” and “union” considering the court’s stand on the former in the case of queer couples.
Still, his caution to the state is unmistakable: “The freedom of all persons, including queer couples, to enter into a union is protected by Part III of the Constitution. The failure of the State to recognise the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples who cannot marry under the current legal regime. The State has an obligation to recognise such unions and grant them benefit under law.”
Justice Chandrachud made two other points that clearly indicated where he was going.
With regard to Article 15 of the Constitution on not discriminating on the grounds of, among others, sex, he wrote: “In Article 15(1), the word ‘sex’ must be read to include ‘sexual orientation’ not only because of the causal relationship between homophobia and sexism but also because the word ‘sex’ is used as a marker of identity which cannot be read independent of the social and historical context.”
He then articulates his view on the link between Article 15 and queer couples: “The right to enter a union cannot be restricted based on sexual orientation. Such a restriction will be violative of Article 15. Thus, this freedom is available to all persons regardless of gender identity or sexual orientation.”
One of his most important observations relates to what he calls the “intimate zone of privacy”. What is this zone?
He wrote: “The formation of human relationships falls within the intimate zone because relationships are relegated to the sphere of the home or the private zone, and they involve intimate choices.”
He then briefly touched on the debate on this zone, recalling how scholars emphasise the democratisation of personal relationships but how the state’s withdrawal from the domestic space sometimes leaves some partners unequal in the hierarchical power structure that often defines the domestic relationships.
The Chief Justice concluded: “Thus, all activities in the ‘private space’ dealing with intimate choices must not readily and blindly be categorised beyond the scope of the state’s regulation. The state must assess if its interest in democratising private space overrides the interests of privacy in a given situation.”
What is left to be imagined is the fact that the private space or the intimate zone can also include a queer sexual relationship. An intimate zone must include all kinds of intimate relationships — either the state regulates all or none.
Justice Chandrachud came straight to the point. He quoted then-chief justice Dipak Misra in the Shafin Jahan case: “Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the State. Courts as upholders of constitutional freedoms must safeguard these freedoms.”
Having said that, Justice Chandrachud referred to the instance of a Supreme Court judge directly favouring the right to marriage of same-sex couples.
In his words: “In Justice KS Puttaswamy (9J) (supra), Justice Nariman (in his concurring opinion) observed that the right to privacy extends beyond the right to be let alone to recognising the vital personal choices such as the right to abort a fetus, and the right of same-sex to marry…”
He then explained: “Neither the majority in Justice KS Puttaswamy (9J) (supra) nor the majority in Navtej (supra) holds that the Constitution guarantees the right to marry. Moreover, the opinion of Justice Nariman in Justice KS Puttawamy (9J) (supra) only made a passing reference to the right to marry. It did not trace the right to marry to any entrenched fundamental rights, nor did it comment on the scope of such a right. In Justice KS Puttaswamy (9J), the issue before this Court was whether the Constitution recognises a right to privacy. Thus, this case did not address the issue of whether the Constitution recognises the right to marry.” (Emphasis mine)
The Chief Justice, in the course of the discussion on the right to marry question, comes upon the Obergefell v Hodges case in the US Supreme Court wherein a majority verdict upheld that the Fourteenth Amendment required every state to perform and to recognise marriages between individuals of the same sex.
Chief Justice Chandrachud stated: “The opinion of the majority held that the components of marriage are not exclusive to heterosexual couples. Thus, the State, by not recognising a same-sex union (which is legal) and by not granting benefits which accrue from a marriage, was held to be treating same-sex couples unequally, violating the equal protection clause.”
It is his understanding that “the jurisprudence which has emanated from the US Courts indicates that the right to marry is recognised as a fundamental right because of the benefits (both expressive and material) attached to it”.
(For the record, Justice Anthony Kennedy of the US Supreme Court decreed: “The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court now holds that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them…“)
The core of Justice Kennedy’s judgment is considered the guiding light of jurisprudence on same-sex issues. He wrote: “No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than once they were.
“As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfilment for themselves.
“Their hope is not to be condemned to live in loneliness, excluded from one of civilisation’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”
The Chief Justice gave two explanations. The first one related to Constitutional outreach.
“The Constitution does not expressly recognise a fundamental right to marry. Yet it cannot be gainsaid that many of our constitutional values, including the right to life and personal liberty, may comprehend the values a marital relationship entails. They may at the very least entail respect for a person’s choice whether and when to enter upon marriage and the right to choose a marital partner.”
Two, the Special Marriage Act is inhibited by two conditions from being extended to apply to queer couples. The first condition for solemnising a special marriage says: “The male has completed the age of twenty-one years and the female the age of eighteen years.” Only two genders are referred to here.
The second condition says: “The parties are not within the degrees of prohibited relationship: Provided that where a custom governing at least one of the parties permits of a marriage between them, such marriage may be solemnised, notwithstanding that they are within the degrees of prohibited relationship.” It is self-explanatory.
Chief Justice Chandrachud digressed a bit to introduce the concept of freedom of association. Prominent constitutional expert Kenneth L Karst developed this in the US in the 1970s.
Karst believed that justice was fuelled by the principle of equality in any matter. He gave some examples to bring home his point: “Without some form of equality analysis, how would a court decide whether the government can constitutionally grant campaign subsidies to Democrats but not Republicans? Whether it can allow political but not religious groups to meet on school property? Whether it can remove library books that are anti-American but not those that are pro-American? Whether it can provide arts funding to artists who celebrate capitalism but not those who celebrate communism?”
Developing on his premise, Karst observed: “Just as the prohibition of government-imposed discrimination on the basis of race is central to the equal protection analysis, protection against governmental discrimination on the basis of speech content is central among First Amendment values.”
Chief Justice Chandrachud applied the freedom of association in the present context of this case and wrote: “Kenneth L Karst, who developed the idea of the freedom of intimate association, argues that the courts have traditionally not permitted the state to interfere or regulate in certain kinds of personal relationships, thereby elevating it to a distinct freedom. The intimate association is characterised by a sense of collectivity beyond two individuals.”
“One of the prominent ideas embraced by the freedom of intimate association is the opportunity it affords to enjoy the society of the other person who is a part of the relationship and the ability to choose to form and maintain such a relationship. The opportunity to enjoy the society of one’s partner may be denied either directly or indirectly. It could be denied directly when the law prohibits such an association. The operation of Section 377 of the IPC criminalising homosexual activity is a form of direct restriction on the freedom of association.”
The Chief Justice looks at the types of families. Basically, one, what he calls the natal family, consists of one’s immediate relatives. He says immediate relatives may vary from society to society. In a typical Hindu family of heterosexual persons, it may consist of the mother and father and, later, children. And the cycle continues.
But then, some atypical families are in contrast to the typical. He then states: “While this conception of a family dominates our collective understanding, it is not the only valid mode by which a family can be formed. Myriad persons do not follow this blueprint for the creation of a family. They instead have their own, atypical blueprint.”
Is this a blueprint for the State to think beyond the traditional concepts of families bound by the institution of marriage? Need to watch this space.
He refers to the Deepika Singh case, where the court “rightly acknowledged” the existence of atypical families. Recalling the “predominant understanding of a family as a single, unchanging unit”, the judgement said: This assumption ignores both the many circumstances which may lead to a change in one’s familial structure and the fact that many families do not conform to this expectation, to begin with.”
Delving into how changes can occur in typical families through remarriage, adoption, or fostering, the judgement reasoned: “These manifestations of love and families may not be typical, but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving of protection under the law and the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families different from traditional ones.”
This is a matter for the State to ponder.
The Chief Justice stated that Article 21 “is available to all persons including queer persons”, encompassing “the rights to dignity, autonomy, and privacy”. Each of these facets animates the others, and it is “not possible to speak of the right to enter into a union without also speaking of the right to intimacy, which emanates from these rights”.
He said these rights demand that each individual be free to determine the course of their life as long as their actions are not barred by law. However, he wrote: “Choosing a life partner is an integral part of determining the course of one’s life.”
He explained: “Life partners live together, spend a significant amount of time with one other, merge their respective families, create a family of their own, care for each other in times of sickness, support one another and much more. Hence, the ability to choose one’s partner and to build a life together goes to the root of the right to life and liberty under Article 21. Undoubtedly, many persons choose not to have a life partner — but this is by choice and not by a deprivation of their agency.”
However, he observed how the law constrains the right to choose a partner in certain situations, such as when they are within prohibited degrees of relationship or are in a consanguineous relationship.
The Chief Justice brings up for discussion the Yogyakarta Principles. In 2006, in response to human rights abuses, experts met in Yogyakarta, Indonesia, and finalised 29 principles for the international community to accept and implement.
Principle 24 relates to sexual orientation and the right to find a family. It says, and the Chief Justice quotes in his judgement: “Everyone has the right to found a family, regardless of sexual orientation or gender identity. Families exist in diverse forms. No family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members.”
The principle expands to propound: “States shall: Take all necessary legislative, administrative and other measures to ensure the right to found a family, including through access to adoption or assisted procreation (including donor insemination), without discrimination on the basis of sexual orientation or gender identity;
“Ensure that laws and policies recognise the diversity of family forms, including those not defined by descent or marriage, and take all necessary legislative, administrative and other measures to ensure that no family may be subjected to discrimination on the basis of the sexual orientation or gender identity of any of its members, including with regard to family-related social welfare and other public benefits, employment, and immigration.”
India is not a signatory to this.
The Chief Justice makes an important observation: “While India is not a signatory to the Yogyakarta Principles, this Court has recognised their relevance to the adjudication of cases concerning sexual minorities. Depriving someone of the freedom to choose their life partner robs them of their autonomy, which is an affront to their dignity.
“Preventing members of the LGBTQ community from entering into a union also results in denying (in effect) the validity of their sexuality because their sexuality is the reason for such denial. This, too, would violate the right to autonomy, which extends to choosing a gender identity and sexual orientation.
“The act of entering into an intimate relationship and the choices made in such relationships are also protected by the right to privacy. As held by this Court in Navtej (supra) and Justice KS Puttaswamy (9J) (supra), the right to privacy is not merely the right to be left alone but extends to decisional privacy or privacy of choice.”
Approaching the conclusion of his judgement, Chief Justice Chandrachud referred to the submission of the Union of India that “if non-heterosexual couples are permitted to enter into a union, then the State will also have to extend the right to incestuous, polygamous, or polyandrous relationships”.
To answer this question, he states the court has to deal with the issue of whether the State has the power to place restrictions on the right to enter into a union and, if so, what is the extent of such restrictions.
His response: “The right to enter into a union like every other fundamental right can be restricted by the State….However, if the State restricts the right or has the effect of restricting the right (both directly and indirectly) based on any of identities mentioned in Article 15, such a restriction would be unconstitutional.”
The Chief Justice rejected the State’s view that non-heterosexual unions “would lead to allowing incestuous, polyandrous, and polygamous unions for all communities (the personal laws of some religious and trial communities currently permit polygamy or polyandry)”.
The Chief Justice made a distinction between unions based on sexual orientation and other unions the state mentioned. He wrote: “The restriction on sexual orientation will violate Article 15 of the Constitution. On the other hand, the restriction on incestuous, polygamous or polyandrous unions would be based on the number of partners and the relationships within the prohibited degree.
“The court, in that case, will determine if the State’s interest in restricting the right based on the number of partners and prohibited relationships is proportionate to the injury caused due to the restriction of choice. In view of the discussion above, a restriction based on a marker of identity protected by Article 15 cannot be equated to a restriction based on the exercise of choice. For this reason, we find that the apprehension of the Union of India is unfounded when tested on constitutional principles.”
Interestingly, the Chief Justice pointed out a dichotomy in the State’s argument on same-sex marriages.
He pointed out: “The Union of India seems to have a mixed response to this claim. On one hand, it asserts that marriage must only be between ‘biological’ men and ‘biological’ women.”
On the other hand, the written submissions of the learned Attorney General stated: “The issues relating to transgender persons arising out of The Transgender Persons (Protection of Rights) Act, 2019 stand on a different footing and can be addressed without reference to the Special Marriage Act.”
