Same-Sex Marriage : Onus on legislature to initiate reforms

Rakesh Dwivedi

Senior Advocate, Supreme Court

The quest of the LGBTQIA+ (lesbian, gay, bisexual, transgender, queer, intersex and asexual) community to gain the right to marriage and legal recognition on a par with heterosexual couples under the Special Marriage Act suffered a setback when the Supreme Court, in a majority verdict, ruled against granting these entitlements. However, the SC Bench directed the Union Government to constitute a high-level committee, as mentioned by the Solicitor General during the arguments, to determine and ensure civil rights and social benefits to the members of the LGBTQIA+ community. The committee will be headed by the Cabinet Secretary.

This case raised an important issue about positive obligation of the state to enable

the exercise of fundamental rights.

There were four judgments — one each pronounced by Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat and Justice PS Narasimha. Justice Hima Kohli agreed with Justice Bhat.

The lead judgments were delivered by CJI Chandrachud and Justice Bhat. Justices Bhat, Kohli and Narasimha joined to constitute the majority view. Justice Narasimha supplemented the judgment of Justice Bhat.

Justice Bhat, speaking for the majority, observed that marriage was a social institution that had existed even before the concept of the state was born. It existed dehors the Constitution, and could not be considered as being enshrined in Article 21 or other fundamental rights under Article 19 or 25. He also noted chronologically the steps taken by the legislature to introduce reforms, and said further reforms to accommodate the LGBTQIA+ community either under the existing laws or a fresh law were entirely within the domain of the legislature. He said the judicial fora were unsuited to engage in this exercise as the inclusion of different segments of the LGBTQIA+ community presented its own complexities, which needed careful evaluation. In this regard, he referred to the separation of powers under the Constitution, as explained by several previous judgments, and held that the SC would be trenching on the legislative domain if it itself attempted to do an evaluation.

As regards the community’s demand for the recognition of its union, distinct from marriage, the Chief Justice upheld this claim based on the provisions of Articles 19 (i)(a), (e), 21 and 25 of the Constitution. According to the CJI, the state had a positive obligation to establish a framework for such recognition. However, Justices Bhat, Kohli and Narasimha, differing from the CJI, held that Article 21 only affirmed the right to live together, cohabit and express mutual love for individuals in same-sex relationships, in line with their personal choices and consistent with dignity and autonomy. But they opined that this did not confer upon them a further right to recognition by the state or society as a marriage or union. That was in the domain of the legislature.

Both the CJI and Justice Bhat referred to previous judgments dealing with the choice of persons to marry whomsoever they desired irrespective of religion or caste or nationality. They said those cases dealt only with choice and autonomy, and did not recognise marriage as a fundamental right.

Both lead judgments also differed on the issue of validity of the Central Adoption Resource Authority (CARA). The CJI declared that its provisions were ultra vires and discriminated against the LGBTQIA+ community. Justice Bhat, speaking for the majority, however, refrained from taking that course, and left it to the legislature to undertake social reforms.

This case raised an important issue about the positive obligation of the state to enable the exercise of fundamental rights. And it is here that there was a serious divergence between the majority judgment of Justice Bhat and that of the CJI. In the Aadhaar case, the Supreme Court had laid the theory of the positive obligation of the state to aid the exercise of fundamental rights. But this was a concrete case for its application. The Supreme Court had to lay down the criteria and the extent to which, and under what circumstances, the state could be compelled through mandamus to take positive steps, keeping in mind the long list of cases emphasising that mandamus could not be issued to the legislature to make laws, besides the principle of judicial restraint in matters related to policymaking.

Separation of powers demands that courts don’t trench on these arenas. Justice Bhat gave an interesting example, saying that merely because there was a right to travel, the court could not direct building of roads as per its sense of need and priority. The majority refused to walk the path of ‘positive obligation’ concerning the recognition of LGBTQIA+ unions by the state.

To be fair, the CJI recognised the difficulties but held that mandamus could be issued in cases involving clear instances of discrimination resulting in denial of rights. On this score, the last word has certainly not been spoken. The future will throw up diverse situations.

In sum, the LGBTQIA+ community did gain incrementally as directions to the Centre were given for ensuring the extension of civil and social benefits expeditiously. The court hoped that the Union Government would consider what else could be done regarding the recognition of some form of status for members of the community.

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