The Apex Court of our country in a very recent judgment in the case of Supriyo v. Union of India, delved into the nuances of same-sex marriage. The judgment laid down the position of law on the long-standing question of the validity of same-sex unions. The Constitution bench which had been constituted for the adjudication of the case unanimously observed that same-sex were not to form part and parcel of the Special Marriage Act, 1954, thus, not forming the part of the term ‘marriage’ within the act.
The offshoot of this position is the denial of legal recognition of queer marriages in India. Although, the Constitution bench pronounced four judgements, authored by CJI DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat and Justice PS Narasimha respectively, with Justice Hima Kohli concurring with Justice Bhat’s disposition, all of the judges in chorus observed as to not read down or repeal SMA, 1954. The court was of the opinion that reading queer marriages within the domain of the SMA, 1954 would amount to interfering in the domain of the legislature and this is very much a legislative exercise.
The petitioners in the present case had prayed before the court to interpret the terms ‘man’ and ‘woman’ under Section 4 of the SMA, 1954, to include queers within the purview, this would have qualified queer unions within the aegis of the SMA, 1954.
1. Interpreting Special Marriage Act, 1954 to Include Queer Marriages Has a ‘Complex Workability’
According to the judgement authored by CJI DY Chandrachud, Section 21A of the SMA, 1954, relates the legislation to the phenomena of personal and non-personal laws relating to succession making the idea increasingly intricate. Furthermore, CJI Chandrachud also laid emphasis on the fact that in the case even the petitioner had to come up with a lengthy blueprint on the effects that reading of queer marriages under SMA, 1954 would have. Furthering the discussion on this point, Justice Kaul, in his judgement, observed that the offshoots which bestow upon tying the knot are very much like a “proverbial ‘spider’s web’ of legislations and regulations” and thus, any fiddling with SMA, 1954 to include queer marriages within its domain would have had a chilling effect on many allied laws.
2. Abandoning Special Marriage Act, 1954 Would Have Transported Us Back to Independence Times
The CJI, in his judgement, observed that SMA, 1954 was enacted with the sole intention, to enable individuals from two different social standings to form the union of marriage. In this, regard if the court were to hold down SMA, 1954, it would inevitably take the country back to independence times when express restrictions in this regard had been imposed by the societal discourse. He further observed:
“Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another.”
Justice Kaul, concurring with this opinion of CJI Chandrachud, observed that the mandates of SMA, 1954 provided for “A special form of marriage” that was available to any individual in India notwithstanding their social status or their social attributes and thus laid down a mechanism of secular solemnization and registration of marriage in the country.
3. Incorporation of New Meanings in Special Marriage Act, 1954 Would Amount to Entering the Domain of the Legislature
The CJI, in his judgement, observed that incorporation of new meanings of terms under SMA, 1954 would amount to overreach into the legislature’s domain. He observed that a judicial institution like the court is not well equipped to make a decision of this magnitude because of the far-reaching impacts the same would have. The CJI held that:
“This Court would in effect be redrafting the law(s) in the garb of reading words into the provisions. It is trite law that judicial legislation is impermissible.”
Elaborating further, it was observed that the decision to make amends in SMA, 1954 is very much the task of the legislature because of the amount of data and policy statistics it possesses. CJI Chandrachud further observed that courts of law while interpreting law should be aware of their boundaries and should not cross into the domain of the legislature in the name of judicial activism. Justice Kaul in his judgement, was of the opinion that indeed SMA, 1954 was unconstitutional as it violated Article 14 of the Indian Constitution as it denied equal matrimonial rights to queer couples, he did concur with the opinion of CJI and observed due to the institutional bottlenecks and limitations, the Supreme Court was not entitled to take decisions of this magnitude and the same should be left to the disposal of the legislature.
4. Constitutionality Test of Special Marriage Act, 1954
The issue of the constitutionality of the SMA was the issue where varying opinions of judges came forward. Justice Kaul in his view observed SMA, 1954 to be violative of Sections 14 and 15 of the Indian Constitution. His opinion revolved around the contention that even if the objective behind the enactment of the SMA, 1954 was to facilitate inter-faith unions, no reasonable classification or intelligible differentia can be culled out from the policy of excluding queer marriages within its domain. He observed that this unjust exclusion of same-sex marriages under the mandates of the SMA, 1954, would be violative of our constitutional morals, especially after the judgment of this court in the case of Navtej Johar v. Union of India, wherein the court forbade any discrimination made based on the sexual orientation of an individual.
Justice Bhat, addressing for himself and Justice Kohli, was of the view that SMA, 1954 cannot be held to be violative of our Constitution as, during its passage, SMA, 1954 had been passed keeping in mind the sole objective of enabling inter-faith marriages in the country. He further observed that the legislation did not specifically try to exclude non-heterosexual couples from its ambit but the same at that time was considered to be an offence under Section 377 of the IPC. Adding to this, he viewed that the original object behind the enactment of SMA, 1954 cannot be called into question just because of the fact that due to the passage of time, the said object has become somewhat static. He stated:
“The relevance of SMA has gained more ground, because of increasing awareness and increasing exercise of choice by intending spouses belonging to different faiths. It cannot be said, by any stretch of the imagination that the exclusion of non-heterosexual couples from the fold of SMA has resulted in its ceasing to have any rationale, and thus becoming discriminatory in operation. Without a finding of that kind, it would not be open to the court to invoke the doctrine of “reading down”.”
5. Gender-Neutrality of Terms Under Special Marriage Act, 1954 Would Lead to ‘Anomalous’ End Results
Justice Bhat, in the judgment authored by him, concerned himself with the outcomes that gender-neutral terms under the SMA, 1954 would have on the society at large. He contended that such an interpretation, though it sounds very liberal would unnecessarily act as an impediment for women.
He emphasized that terms like ‘wife, ‘husband, ‘man,’ and ‘woman’ in marriage laws, as well as laws concerning themselves with sexual violence and harassment, were meant to safeguard socially backward strata of the society. These terms were tailored, to ensure that the marginalized class, in most cases them being women are not denied a legal recourse. Here, reference may be made to the provisions and mandates of the Domestic Violence Act, 2005 and the various provisions under the SMA, 1954 which provides for alimony, maintenance and other ancillary matters.
Justice Bhat was of the opinion that the general outlook of these provisions along with the quantum of good they do for women, would inevitably lead to anomalous and atypical outcomes if the SMA was sought to be interpreted in a gender-neutral fashion.
In its recent judgment in the case of Supriyo v. Union of India, the Supreme Court of India has denied legal recognition of same-sex marriages in the country. The court’s ruling is a setback for LGBTQ+ rights in India, but it also leaves the door open for the legislature to pass legislation legalizing same-sex marriage. The court’s reasoning for denying legal recognition to same-sex marriages is based on several factors, including the complexity of interpreting the Special Marriage Act, 1954, to include queer couples, the potential for unintended consequences of such an interpretation, and the court’s belief that the issue of same-sex marriage is best left to the legislature to decide.
While the court’s ruling is disappointing, it is important to note that the court has not explicitly ruled that same-sex marriage is unconstitutional. In fact, the court has left the door open for the legislature to legalize same-sex marriage, stating that “the Parliament is the supreme law-making body in India and it is competent to enact any law within the ambit of its legislative powers.”
This article is written and submitted by Devam Krishnan during his course of internship at B&B Associates LLP. Devam is a B.A. LLB 4th year student at National University of Study and Research in Law, Ranchi.