The Dodging Technique of Rights-Adjudication: Indian Supreme Court in Marriage Equality Case

Hari Kartik Ramesh & Surbhi Karwa

Jindal Global Law School & Faculty of Law and Justice, UNSW-Sydney

In a judgment delivered on October 17, a five-judge bench of the Supreme Court (SC) of India refused to recognize the right to equal marriage or civil union for same-sex and queer couples in India. 

In the 2018 case of Navtej Johar v. UOI, the Court decriminalized homosexuality between consenting adults on the grounds of discrimination based on sex and sexual orientation, dignity, privacy, and freedom of expression. Based on Navtej, the current petitioners had argued that the secular law on marriage, the Special Marriage Act, 1954 (‘SMA’), should be held unconstitutional for the exclusion of homosexual and queer persons. The petitioners also prayed for a bundle of rights associated with marriage, like joint bank accounts, insurance nomination of partners, hospital visitation rights, etc. The petitioners argued that the terms’ persons’, ‘party’ and ‘spouse’ used in the SMA (along with words like ‘man’, ‘woman’, ‘bride’ and ‘bridegroom’) should be read to include persons in same-sex relationships.

The Court unanimously rejected the petitioners’ argument It held that: (a) there is no fundamental right to marriage under the Constitution and (b) the Court lacks the institutional capacity to reinterpret the law in the manner sought by the petitioners. The Court accepted the Union of India’s argument that such a reading would have a ‘cascading effect’ requiring comprehensive reinterpretation of not merely the statute in question but also allied legislation dealing with a range of issues from adoption to inheritance, which are governed by non-secular personal laws. The question thus was left to Parliament.

In this post, we argue that the Court adopted what E. Delaney refers to as ‘strategic avoidance’, where the Court does not provide a substantive rights ruling to protect and cultivate its institutional legitimacy. We argue that despite acknowledging the varied discriminations faced by the queer community, the Court shows a deep reluctance in declaring the concerned law discriminatory. Instead, the Court dodges the rights adjudication away through an incoherent doctrine of ‘institutional incapacity’.

Findings of the Court:

The Court delivered four opinions: the majority included J. Ravindra Bhat, J. Hima Kohli (joint judgment), and J. PS Narsimha (separate judgment), with two separate concurring/dissenting judgments by Chief Justice DY Chandrachud and J. SK Kaul. While the judges gave varied answers to a range of questions on marriage and the associated rights of the queer community, they were unanimous in holding against the right to marriage and the Court’s lack of institutional capacity. 

Chief Justice Chandrachud began by discussing the lack of a static, constant definition for the ever-evolving institution of marriage, and the impact of the unavailability of marriage to same-sex couples. He declared that there is no justification for the exclusion of same-sex couples from SMA on grounds like procreation. He, however, refused to hold the exclusion as unconstitutional, citing the institutional incapacity of the Court to rewrite substantial parts of the SMA. Unlike the majority, the Chief Justice found that queer couples’ right to enter a union cannot be restricted, potentially paving the way for civil unions. He also found that the regulations by the Central Adoption Resource Agency (CARA), which debarred same-sex couples from adopting children, violated the right to equality found in Article 14 of the Constitution.

The majority opinion of J. Bhat, on the other hand, found that the SMA’s focus on heterosexual marriages is constitutional. J. Bhat went to similar lengths to explain the ‘disparate effect’ of the denial of the bundle of rights adjoining marriage to same-sex couples. Yet, he did not make an explicit finding of discrimination, leaving the amendment of both the SMA and any beneficial laws to the Parliament.

The minority opinion of J. SK Kaul is the only judgment that explicitly held the SMA unconstitutional, despite his agreement with the Chief Justice on institutional incapacity.

Incoherent Reliance on the Doctrine of Institutional Incapacity

The Court’s understanding of ‘institutional capacity’ refers to the ability of the Court to reinterpret the text of a statute to ensure conformity with the Constitution.

Chief Justice Chandrachud cited institutional incapacity for refusing to strike down and reinterpret the SMA. Thus, he did not make a definitive ruling on the constitutionality of the SMA (para 208).

Justice Bhat found the SMA constitutional and yet also agreed with the Chief Justice that the Court’s institutional incapacity barred interference with the law (Para 86). If he already found that the SMA is constitutional and thus the state is not required to take any remedial action vis-a-vis the SMA, then it is unclear what the nature of institutional incapacity is with which he agrees.

On the other hand, Justice Kaul found the SMA unconstitutional, yet also agreed with the Chief Justice’s finding of institutional incapacity. Thus, despite a finding of unconstitutionality, a remedy didn’t result from such a finding (para 16-17).

Essentially, three sets of opinions made three sets of findings on the SMA. They ranged from a stance of non-interference to holdings of constitutionality and unconstitutionality – all while citing institutional incapacity. There is an internal contradiction here. Institutional capacity has been used in two senses here. The first is as a ground against vast reinterpretation of the statute or striking it down, and the second is as a ground for not making a finding of unconstitutionality in the first instance.

This was a difficult case given the strong opposition of the ruling party and the complicated interpretative task at hand. Yet institutional capacity cannot and should not be allowed to operate as carte blanche in rights-adjudication. Its boundaries must be strictly drawn because unlike the UK, India’s Parliament is not sovereign. The Constitution empowers the SC to provide strong remedies and even find laws unconstitutional. The SC, in the past, has in fact shown a near-limitless institutional capacity. In Vishakha v. State of Rajasthan, the SC effectively drafted legally binding regulations on workplace sexual harassment, which had the force of law until Parliament decided to pass legislation on the subject 15 years later.

In the current case, there was a potential to carefully craft and provide incremental remedies at the very least. Across the world, remedies in same-sex marriage cases have taken either of two routes. The first is hard remedies like in Obergefell, where the Supreme Court of the United States found laws restricting same-sex marriage unconstitutional and refused to defer the matter to legislative action. Alternately, courts have issued dialogic remedies, like in Fourie, where the South African constitutional Court found the discriminatory laws unconstitutional but suspended the declaration for 12 months for the legislature to take action.

The Indian case is neither. The deference to the legislature is higher than the previously discussed cases because the Court here not only refused reinterpretation or a striking down of the statute to make it constitutionally compliant but also refused to declare if it is unconstitutional, to begin with.

Whatever Happened to the Reasonable Classification Test

In this case, the notion of institutional incapacity has also been used without the complete application of existing standards of equality. Currently, any claim of discrimination requires undertaking a two-step analysis called the reasonable classification test. It requires first, that there be an intelligible differentia between the included and excluded group, and second, that there be a rational nexus between the basis of the differentia and the purpose of the statute.

The Court seemingly does not explicitly accept the government’s argument that marriage is for the purpose of procreation (Justice Bhat para 146; Justice Chandrachud para 100-107, para 124). Once the objective of procreation is rejected, the restriction of the SMA to heterosexual couples could be declared unreasonable, as such a classification between homosexual and heterosexual marriages does not have a rational nexus to the objective of the SMA, which is to provide a means for secular marriage.

Alternately, if the objective of the SMA was to facilitate only heterosexual secular marriage, then it is doubtful that such an objective and subsequent classification are valid in the first place. Such a classification would be patently in violation of Art 14 and Art 15 today (something that the minority judgment of J. Kaul notes) (para 16). 

This scrutiny, however, is not undertaken at all in the majority judgment. After declaring the objective of the SMA to be the regulation of inter-faith marriages (wherein marriage at the time denotes one between heterosexual couples), J. Bhat does not undertake any classification analysis or rational nexus analysis for excluding homosexual couples and pursuing the objectives of the SMA.

Consequences for Systemic Discrimination

This lack of clarity on institutional incapacity becomes further worrisome given the systemic nature of discrimination involved. There is widespread acknowledgment that the legal framework around marriage discriminates against the queer community and denies them the bundle of rights associated with marriage. Yet, the judicial opinions in this case paradoxically use such rampant discrimination as the reason for the Court to not make a finding of unconstitutionality.

Systemic discrimination tends to trigger stricter review by the courts, requiring the state to provide more justifications for the status quo (something that Justice Kaul frankly acknowledges in his judgement). But in the current case, the strong reliance on an incoherent notion of institutional incapacity results in the discrimination inquiry being turned on its head. Here, despite acknowledging widespread discrimination, the state is not asked for any justification or even obligation to change the status quo.

There is serious incongruence here. In its current formulation, the notion of institutional incapacity means that if discrimination is merely tangential to the rest of the statute, then the Court can provide a remedy for the injured party. It would also lead to the perverse conclusion that if the law in its entirety is encoded with discrimination, the Court will be incapable of doing anything.

This is alarming equality jurisprudence, which can allow systemic discrimination against the discriminated party based on a broad assertion of institutional incapacity.

Previously, in the Lt. Col Nitisha case, the SC had used systemic discrimination to strike down a scheme under the Indian army wherein, medical exams for a certain promotion were conducted later in a woman’s career, as opposed to men. In this case however, it seems that the Court has given preference to heterosexual convenience over the rights of homosexual couples in refusing to acknowledge the unconstitutionality of SMA.

On Formation of Committee:

All four opinions conclude with the ‘assurance’ of the Solicitor General that the government will form a committee under a senior bureaucrat to ‘define and elucidate the scope of entitlements’ of queer couples. The committee has been directed to address how queer couples can navigate daily rights violations such as those associated with opening joint bank accounts, seeking medical treatment, and jail visitation rights, while leaving the question of civil union or marriage aside. The Court has also not given any deadlines for the committee.

The Court’s directions in this case fit into a growing pattern of its abdication of constitutional responsibilities by relying on government committees. Unlike in Navtej, the sodomy decriminalization decision, where the government of India did not contest the unconstitutionality of the criminalization, the govt in this case strenuously argued against petitioners, with their assertions often bordering on homophobia.

In conclusion, the Indian Supreme Court has avoided finding unconstitutionality or engaging the government in dialogue. It has used an internally inconsistent and structurally underexplained doctrine of institutional capacity not merely as a method to not read words into the statute, but also to not decide on whether the status quo causes a constitutional infringement of rights. Thus, the Court has not given even the limited acknowledgement of the infringement of rights that a declaration of incompatibility would provide. The Court has essentially recorded the assurances of the government and moved on!

Hari Kartik Ramesh is Assistant Lecturer at Jindal Global Law School.

Surbhi Karwa is a PhD Candidate at the Faculty of Law and Justice, UNSW-Sydney.

Suggested citation: Kartik Ramesh and Surbhi Karwa, The Dodging Technique of Rights-Adjudication: Indian Supreme Court in Marriage Equality Case, IACL-AIDC Blog, (7 December 2023) https://blog-iacl-aidc.org/2023-posts/2023/12/7/the-dodging-technique-of-rights-adjudication-indian-supreme-court-in-marriage-equality-case