The Supreme Court of India recently rejected a petition to legalize same-sex marriage, setting back the goal of marriage equality in the country even further. In a country estimated to have at least 2.5 million LGBTQ+ people (as of government figures from 2012), the realization of same-sex couples entering into legally recognized marriages or gaining adoption rights remains at large.
The court’s recent judgment, however, offered some glimmer of hope and sympathy to the petitioners by expanding the definition of discrimination and allowing transgender individuals to marry. Ultimately, the court vested the power to reform marriage laws to the Indian legislature stating that the judiciary “must be careful not to enter into the legislative domain.”
The journey of LGBTQ+ rights in India has been significant in the past few years. In the landmark decision of the Supreme Court in Navtej Singh Johar v. Union of India (2018), Section 377 of the Indian Penal Code (1860) was decriminalized. This meant that Section 377, a colonial-era provision that upheld homosexual acts between two persons as an “unnatural offense” punishable with imprisonment for life, was deemed unconstitutional. As a result, the right to sexuality, sexual autonomy and the choice of a sexual partner was granted to all individuals irrespective of their gender or sexual orientation.
This was a momentous decision that recognized the right to choose a partner as an important right under Article 21 of the Indian Constitution which deals with the right to life and personal liberty: “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
The right to marry has been recognized as a part of right to life and personal liberty in numerous cases (Lata Singh v. State of Uttar Pradesh, Shakti Vahini v. Union of India, Shafin Jahan v. Asokan K.M. & Ors., etc.). That said, none of these cases pertained to same-sex marriages. But through the decriminalization of homosexuality in 2018, the courts recognized that members of the LGBTQ+ community “are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution” and are entitled to equal citizenship and and “equal protection of law.”
Despite these validations, same-sex marriages lack formal legal recognition in India. Marriages in India are governed by personal laws which are guided by religion. Each of these laws differs in the way they recognize and allow for the registration of marriage. The Muslim Marriage Act governs marriages in which both parties belong to and profess the Muslim faith or religion. It uses the terms “bride” and “groom” as requisites for marriage registration. Under the Hindu Marriage Act (1955) and the Parsi Marriage and Divorce Act (1936), there is no explicit provision that marriage has to be performed between a man and a woman. However, all conjugal rights arising out of marriage are applicable to either “husband” or “wife.” This means that even if same-sex marriages were legally recognized, there are no provisions to administer all the other rights that come with marriage, such as divorce, alimony, maintenance, legal guardianship, adoption, etc. Marriage is a “bouquet of rights” which arise from spousal relationships that are created by marriage. Without the legal recognition of marriage between members of the same sex, these rights are excluded from a sizable part of the population.
There’s also the Special Marriage Act (1954) — a secular law providing for solemnization and registration of marriage — which uses gender-specific language to recognize only “male-female” marriages. One of the biggest questions before the Supreme Court in the present case was to decide whether the words “male,” “female,” “bride” and “bridegroom” can be read as “persons,” “spouses” or other gender-neutral terms. There are two legal issues with making the above decision. One, the minimum age restrictions for marriage differ for males and females (21 and 18 respectively). A gender-neutral interpretation may create confusion with the determination of minimum age. But even if this technicality was overcome with additional qualifications in the amendment to this law, the second legal issue presents a challenge. In constitutional terms, by amending the current law, the Supreme Court would, in effect, be creating a new law. This is a bigger issue to consider in relation to the powers granted under the Indian Constitution to different organs of the government, including the judiciary, and therefore it involves bigger questions of law and constitutionality.
The state along with religious bodies have united in their protest against the judiciary directing a change in marriage laws, saying that the resulting precedent may upset the balance of power with the legislature (or Parliament) which exists to create laws. This is also the reasoning given by the Supreme Court’s unanimous conclusion that “the Court cannot strike down the constitutional validity of the Special Marriage Act, 1954 due to its institutional limitations…[and because] that would amount to judicial legislation.”
But here is why this reasoning is deficient. Under the Indian Constitution, the Parliament and state legislatures have the power to make laws within their respective jurisdictions. But this power is not absolute. The doctrine of separation of powers vests upon the judiciary the power to interpret the constitutional validity of all laws. If a law made by the Parliament violates constitutional provisions, the court has the power to declare such a law as “ultra vires” or unconstitutional. The system of checks and balances is therefore integral to the system of deliberative democracy and not contravening it.
The right to marry, as stated earlier, has been pronounced as an important part of the fundamental rights of the Indian Constitution. The Supreme Court, as the protector of these rights and the interpreter of the Constitution, is well within its power to declare those provisions of marriage laws unconstitutional which are untenable to preserving the rights of all citizens, including and especially the queer community.
At present, the court’s decision to pass the buck to the legislature in creating marriage reform is simply lacking in its oversight functions. To some extent, the concept of judicial activism derives from the underlying weakness and failure of other state machinery to perform their duties. The right to life and personal liberty is the most pivotal fundamental right around which all other rights take effect, and therefore, the Supreme Court’s role in moving the needle forward on the reform of laws in marriage equality is a necessary constitutional prerogative.
