Same-sex marriage: 4 SC verdicts made critical analyses of dissenting views

The five-judge bench of the Supreme court, which unanimously refused to legalise same-sex marriage in four concurrent verdicts, differed on issues like applicability of adoption rules for queer couples and unusually made critical analyses of rival opinions and findings.

The Constitution bench headed by Chief Justice D Y Chandrachud on Tuesday refused to accord the legal recognition to same-sex marriage under the Special Marriage Act, saying there was "no unqualified right" to marriage with the exception of those that are recognised by law.

The bench comprising the CJI, and Justice Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha wrote four separate judgments.

While the CJI and Justice Kaul were broadly on the same page on all legal issues raised in the petitions, three other judges Justices Bhat, Kohli and Narasimha differed with the views expressed by the two.

In his 247-page judgement, the CJI separately penned a response to the opinion voiced by Justice Bhat who, in turn, also wrote a postscript as rejoinder to the critical analysis of his views by Justice Chandrachud.

The CJI referred to Justice Bhat's opinion that the court recognises unenumerated rights in response to State action and mostly they pertain to Article 21 (protection of life and liberty) under the Constitution.

In the opinion authored by him, my learned brother, Justice Ravindra Bhat states that unenumerated rights are recognised by Courts in response to State action that threaten the freedom or right directly or indirectly.'

With due respect, such a narrow understanding of fundamental rights turns back the clock on the rich jurisprudence that the Indian courts have developed on Part III (fundamental rights) of the Constitution, the CJI said.

The CJI referred to some judgements and said the top court has held in numerous cases that the rights of persons are infringed not merely by overt actions but also by inaction on the part of the State.

In NALSA ..., this court held that the State by rendering the transgender community invisible and failing to recognize their gender identity deprived them of social and cultural rights. This Court recognised the duty of the State to enable the exercise of rights by the transgender community and issued a slew of directions to enforce this duty..., the CJI said.

Writing an 89-page judgement for himself and Justice Kohli, Justice Bhat responded, postscript, that a close look at the cases cited by the CJI would reveal that they all pertained to facets of personal liberty or an aspect of the subject was related to legislation.

The learned Chief Justice in his response seeks to highlight that the Court has in the past exercised its powers under Article 32 in respect of enforcement of various fundamental rights and cited certain precedents. A close look at each of them would reveal that in almost all cases, the Court enforced facets of personal liberty, or an aspect that was the subject of legislation, Justice Bhat wrote.

Justice P S Narasimha concurred with Justice Bhat in his 13-page judgement.

Discussing the case laws, the CJI said, The observation of Justice Bhat that an overt action of the State is necessary for the court to direct the State to create enabling conditions has no jurisprudential basis..

I also disagree with the observations of Bhat J that in the absence of a legal regime, the power of this Court to issue directions to enable the facilitation of rights is limited, Justice Chandrachud said.

Referring to the pleas seeking legal sanction for same-sex marriage, the CJI said they are demanding equal access to something which does exist that is the entitlements which flow from the right to form an abiding cohabitational union.

In fact, my learned brother himself recognizes this when he holds that the actions of the state have the effect of discriminating against queer couples. The example under Article 19(1)(a) is unconvincing for similar reasons, the CJI said.

The CJI then dealt with the opinion of Justice Bhat on aspects of marriage. Justice Bhat, in his judgement, held that the legal dimension of marriage in the USA is different from the legal dimension of marriage in India and in India, the legal status of a marriage stems from personal law and customs.

While there is no doubt that marriage predates the state and the existence of what we now consider law', I am unable to agree with the conclusion of my learned brother that the status of a marriage in India stems only from personal law and customs and that the terms of marriage are largely set independently of the state, the CJI said.

Justice Chandrachud then gave reasons and said the legal status of a married couple stems from statute.

Once the state begins regulating marriage, the validity (and consequently, the status') of marriage is traceable to law. While law may provide that a marriage is valid if it was performed in accordance with custom, it is beyond cavil that the only reason that a custom is relevant (for the purposes of law) is because of law itself. Therefore, it is law (through statutes) that accords significance to personal law and customs..., he said.

Thus, marriage as an institution cannot anymore be viewed as solely traceable to customs and traditions after the State's interference to regulate the institution. The State's reformation of the institution has slowly but evidently changed the nature of the institution itself. Under the Constitution, the state is empowered to reform social institutions including marriage in line with constitutional values, he said.

Justice Narasimha, who also disagreed with the CJI, said, until the post constitutional codification of laws relating to marriage and divorce, there was no significant State intervention with regard to customary laws relating to marriage.

Even today, much of the Mohammedan law of marriage is governed by religious texts and customs and there is hardly any State intervention. The Sixth Schedule areas under the Constitution are largely governed by customary laws of marriage. That the State has chosen to regulate the institutional space of marriage and even if such regulation occupies the space in toto, by itself does not imply that marriage attained significance due to State recognition, Justice Narasimha said.

The CJI said, in fact, Justice Bhat himself recognises that courts often enable and oblige the state to take measures.

My learned brother also arrives at the conclusion that the state is indirectly discriminating against the queer community but fails to exercise the power vested in this Court by Article 32 to alleviate this discrimination in any way, Justice Chandrachud said.

Justifying his directions, the CJI said the top court is not through judicial diktat creating a legal regime exclusively for the queer community but merely recognising the duty of the State to recognise the entitlements flowing from exercising the right to choose a life partner.

The CJI said Justice Bhat contradicted himself when he held that the Special Marriage Act is not discriminatory.

My learned brother discusses in detail the deprivation, exclusion, and discrimination faced by the queer community. In effect, he: (i) recognizes that they have a right not to be discriminated against; and (ii) holds that the actions of the state have the effect of discriminating against them. However, he does not take the step which logically follows from such a ruling which is to pass directions to obviate such discrimination and ensure the realization of the rights of the queer community, Justice Chandrachud said.

The principle --'an infringement of a right has a remedy'-- which has been applied in the context of civil law for centuries cannot be ignored in the constitutional context, he said.

The CJI then dealt with the dissent of Justice Bhat on adoption regulations. Justice Bhat said the reading of the Adoption Regulations to permit unmarried couples to adopt would have disastrous outcomes' because the law, as it stands today, does not guarantee the protection of the child of unmarried parents adopting jointly.

As far as the CJI's comment with respect to the court not reading down certain words in the adoption rules was concerned, Justice Bhat wrote that this was a conscious legislative policy.

In our opinion, striking down the term marital' under Regulation 5(3) would likely have unintended consequences, which cannot be comprehended by the court as it involves policy considerations. This is the reason for desisting from invalidating the provision but having left it to the State to take measures to remedy these impacts, Justice Bhat said on denial of adoption rights to unmarried and queer couples.