Anushka Aggarwal and Shwetha Ramachandran*

The panel consisted of Kanav Sahgal (Research Fellow, Vidhi Centre for Legal Policy) as the moderator and Jayna Kothari (Senior Advocate & Executive Director, CLPR), Rohin Bhatt (Advocate, Chambers of Indira Jaising) and Muskan Tibrewala (Assistant Director, Centre for Justice, Law and Society) as speakers. Jayna Kothari kicked off the discussion summarising the judgement and highlighting the small silver linings of it. Thereafter, Rohin Bhatt pointed out the incongruences within the judgement and the jurisprudence. Muskan Tibrewala identified the normative implications of this judgement and argued how the court underestimated the power of its own jurisprudence. Through the discussion the panel also touched on other aspects of the issue like the concept of unenumerated rights, gender neutrality of laws, impact litigation etc.

On 24th October, 2023, NLS Queer Alliance and LSPR organised a panel discussion on the Supreme Court verdict on the marriage equality case. A panel consisting of Senior Advocate and Executive Director, CLPR, Jayna Kothari; Queer Activist, Lawyer and Bioethicist, Rohin Bhatt; and Assistant Director, Centre for Justice, Law and Society, Muskan Tibrewala and Research Fellow, Vidhi Centre for Legal Policy, Kanav. N Sahgal (moderator) discussed the petitions, the judgement and the way forward. Jayna Kothari kicked off the discussion summarising the judgement and highlighting the small silver linings of it. Thereafter, Rohin Bhatt pointed out the incongruences within the judgement and the jurisprudence. Muskan Tibrewala identified the normative implications of this judgement and argued how the court underestimated the power of its own jurisprudence. Through the discussion the panel also touched on other aspects of the issue like the concept of unenumerated rights, gender neutrality of laws, impact litigation etc.

The Moderator of the session, Kanav. N Sahgal began the discussion with a brief anecdote of the discussions at Vidhi a day before the verdict. Though everyone expected an outcome in favour of the petitioners, one of his colleagues pointed out that no relief would be granted. Though that remark was pushed aside as a joke, it turned out to be the reality the next morning.

The judgement gave a unanimous 5-0 verdict regarding the non-recognition of constitutional right to marry and recognition of the right of transgender persons to marry within a heterosexual framework. When it came to the legal rights, recognisable unions and adoption rights of queer couples within the existing adoption framework, there was a 3-2 split against the petitioners. It was one vote against anything substantial. To elucidate the significance of numbers in court, he quoted a part from the book Controlling Women: What We Must Do Now to Save Reproductive Freedom, by Julie F. Kay and Kathryn Kolbert – “Arguing before the Supreme Court is informed by the lessons of Sesame Street: you need to learn to count, and the only number that matters is five —the necessary votes for a majority.” However, the possibility of something different is all a hypothetical now. It is a thing of the past. Now, it is important to think of the future.

SURPRISE AND THE SILVER LININGS

Jayna Kothari began the discussion by pointing out how the judgement came as a shock and a surprise. One of the significant aspects of the judgement that came as a blow was the declaration that there is no fundamental right to marry under the constitution. Reversing the progress made by numerous decisions, the court reasoned that its previous judgements in the context of right to marry did not actually recognise the Fundamental Right to marry. It guaranteed the Fundamental Right to choose a partner of one’s choice. Such a blatant denial of a constitutionally guaranteed right to marry not only impacts gender and sexual minorities but everybody. It affects the right to marry of inter-faith and inter-caste couples who face immense social prejudice and bias.

However, it does not discount the fact that there were small silver linings present in the judgement. Jayna argues that to some extent, it does take the conversation on queer rights forward. The court held that transgender persons in heterosexual relationships have the right to marry. Though this right was already granted by Madras HC in the case of Arun Kumar v Inspector General of Registration, it is important that the SC recognises this. This declaration will enable and make it easier for trans persons to get their marriages registered without a TG card, medical reassignment documents etc.

When it comes to the decision of the court on civil unions, the bench was split. The minority held that there should be a civil union supported by legal institutionalisation. However, the majority posited that they cannot go beyond legal recognition of relationships between all persons and right to protection for queer couples. Even though this is a limited declaration, it is important because a lot of the cases we see are of people in queer relationships being harassed, through frivolous FIRs filed by family members. This part of the judgement hopefully puts an end to this.

The Protection of Transgender Persons Act, 2019 (‘The Trans Act’) at least on paper, recognises the discrimination on the basis of gender identity. However, there is an absence of law recognising discrimination on the basis of sexual orientation. Though there are several laws having an anti-discrimination aspect to it, they are fragmented and may fail to capture the multitudinous forms of discrimination. With this judgement the court has pointed out the need for an anti-discrimination law in place in furtherance of the positive duty of the State to secure social order and to promote justice and social welfare. While the verdict did not go as planned, we can certainly take these silver linings forward.

THE DISAPPOINTMENT

Rohin Bhatt expressed his disappointment with the judgement and commented that it is written in bad faith and is disingenuous. He clarified his position by highlighting the incongruencies within the judgement. He highlights that though Justice Bhatt initially made a clear difference between “freedom to marry” and “right to marry” in the majority opinion, he later used these terms interchangeably within the judgement.

Secondly, he points out that Navtejclearly relies on Shafeen Jahan and Lata Singh to talk about the choice of sexual partners. It implies that there is a Fundamental Right to marry. However, this judgement, in both majority and minority opinion, overrules it, leaving these precedents in a dubious legal footing. Justice Narasimha says NALSA is not binding because it is a 2-judge bench decision.  However, Navtejis a coordinate bench decision, making it binding on the present bench. Yet without any adequate reasoning as to why it is not binding, the bench forgets that they were still bound by the principles of stare decisis.

Also, recently various Freedom to Religion laws have come into force across the country. As a bunch of petitions challenging these laws are pending, this judgement pre-empts those petitions. The first argument in favour of these laws would be that there is no Fundamental Right to marry. These challenges will need to adopt more creative strategies, possibly focusing on privacy and other constitutional Fundamental Rights. Otherwise, it would become extremely difficult to get relief for inter-religion couples. Added layer of marginality comes in with the queerness of the relationship. The court has failed to look at the heightened vulnerability of queer persons, especially those in interfaith relationships. The bench has clearly failed to examine this issue through an intersectional lens.

Thirdly, Bhatt questions the discussion of Hindu Marriage Act (‘HMA’) to explain the development of marriage laws in India. The judgement praises development of Hindu law with respect to marriage. However, they forget that Hindu law was never supposed to be argued. At the very first stage, it was told that arguments should be limited to the Special Marriage Act (‘SMA’). With respect to the notice regime of SMA, the judgement claims that the challenge to the same was given up during the course of hearing. It was held that it is not a question of law that necessitated a five-judge bench ruling. However, on the 7th day of arguments, when this issue was being discussed, Rohin Bhatt notes that multiple senior advocates, representing the petitioners, rushed to the court.  They argued that this issue cannot be ignored by the five-judge bench. They highlighted that the ignorance of this issue will make the relief granted illusory because of heightened vulnerabilities of the individuals involved. Still, the Court held that the issue will be considered by a smaller bench, though it was extensively argued not only at that mention but also in the rejoinder.

Fourthly, Bhatt talks about the role of customs extensively mentioned in Justice Narasimha’s opinion. The Bombay HC judgement of Narasu Appa Mali extensively dealt with customs. However, it is nowhere cited in the 366 pages long judgement. Justice Chandrachud in Sabarimala judgement had mentioned that the judgement of Narasu Appa Mali is prima facie wrong. However, the court left it open for a subsequent bench to talk about it and decide on its correctness. When the position of law with respect to customs is not clear and the present case in itself does not rely on customary law, it is unclear why the bench is relying on customs to this extent. Muskan and Kanav also raised certain important questions as to why the customs of hijra and queer communities are not considered. Justice Chandrachud does talk about Ruth Vanita’s work where she has highlighted the history of same sex relationships in the past. So, it is a valid question to ask when discussing customs and traditions, whose customs are under consideration? The customs of queer communities deserve the same acknowledgment as those of the majority in India.

Fifthly, he underscores the confusion created by Justice Bhat between State recognition, solemnization and registration. He creates a minute difference between those three and mentions that the petitioners here are seeking recognition. However, in the latter part of his opinion, it becomes entitlement to solemnization and registration. State recognition and registration happens through the state and is confirmed by statute. The solemnization process necessarily requires a religious backing. It is unclear what is so solemn about marriage law in India. Interchangeably using these terms in the context of a secular law like SMA only creates further confusion.

Rohin Bhatt concluded by saying that as lawyers who are regularly representing queer community, they will have to be ready to fight in court. Marriage seems to be the only form of social recognition that society understands. By denying that, the promise of equal citizenship that queer people were granted in Navtejis being compromised. Since the judgement has the force to create a perception that queer couples cannot live together, it would result in more frivolous FIRs being filed. It will contribute to state-endorsed homophobia, especially through the police.

THE MIDDLE PATH

Muskan Tibrewala took a middle stand being neither too optimistic nor too pessimistic about the judgement. Justice Chandrachud clearly identifies and the majority also concurs that Section 3 of the Trans Act does not provide adequate remedy for discrimination in the Act itself. The bench succeeds in identifying the loopholes in the system. However, the court has indirectly supported the inadequate anti-discrimination provisions within the Trans Act. Thus, the petitions challenging the Trans Act 2019 that have been filed by various individuals do not have a promising future.

When it comes to the normative value of this constitutional bench saying there is no right to marry, it becomes dangerous. This holding, when implemented by the police and within families, conveys the message that queer relationships are wrong and illegal. It would make things tough on the ground.

The three paragraphs drafted by Justice Kaul declaring the SMA violative of Article 14 is unarguably the best part of the judgement. However, Justice Kaul becomes the only judge in the bench to declare the same. Though singular in number, it ignited hope that things might get better in the future.

Muskan concludes by arguing that the court has underestimated the power of its own jurisprudence in this judgement. For example, Justice Bhatt in his majority says that the court has not created social structures and this is not the function of the judiciary. The court, however, has previously acknowledged social identities in the case of NALSA. It expanded the recognition beyond the conventional labels to include transgender identities and an expansive third gender, which encompasses individuals not fitting into the existing labels. Within the context of trans rights, the court has also acknowledged the guru-chela relationships. Though the court had previously recognised these gender and sexual minority social structures, it hesitates to do the same in this case. This current judgement appears to downplay the substantial efforts made by the court in the past. There was an opportunity for more extensive progress. However, this outcome is a considerable letdown. While hoping to carry forward positive aspects and minimise backlash, it is essential to monitor how things develop from here.

UNENUMERATED RIGHTS

Kanav and Rohin delve into the significant portion of Justice Bhatt and Kohli’s discussion where they refer to a poet. They emphasise the positive obligations inherent in the framework of Fundamental Rights (‘FRs’), stating that these rights are not absolute and come with certain limitations. The court’s responsibility, regarding unenumerated rights, arises only if there’s some form of state action that explicitly or implicitly restricts those rights. They illustrate this point using a scenario: a poet wishes to share their work with the public. Unless there is a direct or chilling effect restriction by the state, the court’s role in enabling or facilitating this freedom for the poet is limited. The court cannot mandate the state to create a platform for the poet without an evident threat.

Essentially, they suggest that if the state does not directly or indirectly provide a stage for the poet’s performance, the court’s options are restricted. Indian courts have traditionally embraced a transformative constitutional approach, as seen in the Navtejcase, where they advocate for the progressive realisation of rights. However, in this instance, this approach is absent.

Justice Bhatt differentiates between Article 19 and Article 21, specifically how Article 21 encompasses claims against the State, transforming it into a right rather than just a freedom. He uses the analogy of a poet to compare the demand of petitioners. A poet possesses the freedom to speak, but this does not inherently grant them the right to speak or demand construction of a stage for this. The petitioners argued that the restriction on marriage violates Article 21, specifically the right to health. This is because the mental health of queer individuals suffers when their right to choose a partner is impacted. Thus, the puzzling aspect is the confusion introduced by Justice Bhatt himself regarding this distinction. The issue here is not about a scenario where the poet is barred from speaking, thus, restricting freedom. It is akin to living in a time where only prose writers have the freedom to express themselves, in absence of a right. The State has created a scenario where only those expressing themselves in a certain way are allowed to have a voice. This means that poets are unable to speak.

Though the majority and minority judgments have extensively highlighted the challenges faced by these individuals, it seems futile to merely document these issues without taking action.

Pinklist, an informational database, delineates which Lok Sabha MPs have spoken for or against queer issues or remained silent on these matters. Same-sex marriage has been raised in parliamentary discussions a few times. An opposition MP tabled a private member bill related to this, which unfortunately did not pass. In 2015, Dr. Shashi Tharoor attempted to table a bill concerning Section 377, yet it did not progress. This legislative inaction seemingly indicates a deliberate apathy of the state. Hence, asserting that the State has done nothing so far and waiting for negative state action might be futile.

GENDER NEUTRALITY

Another concern raised with respect to this issue is whether gender neutral laws would solve the problem. Adv. Karuna Nandy had addressed the issue of gender neutrality. Some of the petitioners wanted a gender-neutral reading of the SMA. The majority and minority opinions did focus on the same. However, Justice Bhatt and Justice Kohli explained in their opinion how the gender-neutral interpretation of SMA would ‘complicate an already exhausting part to do justice for women and leave room for the perpetrator to victimise them.’ This consideration could be a potential wedge issue between some feminists who would want to keep laws gender-specific to protect heterosexual women and some gay activists who would want the laws to recognize issues that the LGBTQIA+ community face. Muskan adds to the conversation by pointing out that the judgements talk about marriage like a noble institution. However, they forget that it is also a heterosexual and patriarchal institution, which has been a site of oppression. Hence, while we seek for a right to marriage, it is important to engage with the institution of marriage as it is.

The issue lies in the approach taken towards the remedy sought. When gender-neutral provisions are created, gendered protections given to certain parties are taken away. The court cannot read down, read up or tinker with these protective provisions. Justice Chandrachud’s directives concerning Central Adoption Resource Authority (‘CARA’), essentially fulfils the request made in the SMA for CARA. He suggests interpreting the schedule ‘mother/father’ as ‘applicant no. 1 and applicant no. 2.’ Therefore, within the same judgement, there was a form of modification made beyond just the provisions. This alteration was made despite earlier indications that these aspects of the SMA could not be changed in the desired manner.

Recognition is essential for the rights and entitlements of the queer community. These rights should acknowledge the distinct vulnerabilities associated with women, which might differ but exist in a similar context for queer individuals. For instance, under the SMA, a woman has the right to file for divorce from her original home, typically her Maike, rather than from the marital home, recognising that women often rely on their birth home (the men there) during troubled times. This provision enables special protection for women.

However, for trans individuals, seeking protection from their natal family might not be viable as it is also often a site of violence for them. Therefore, it is crucial to explore what protections and jurisdictional requirements would be appropriate for divorce proceedings concerning trans individuals. The queer community will not be sufficiently granted the required rights and entitlements by merely enacting gender-neutral laws. This issue highlights the need for a more extensive project, of which the current efforts represent only the initial step.

Addressing gendered laws and transforming them into gender-neutral statutes is not the sole solution for granting rights to queer individuals. It is essential to recognize that in queer customs and practices, the concept of unions expands beyond the traditional heterosexual idea of marriage. Different forms of families exist within the queer community. Integrating these diverse family structures into family law requires further exploration and consideration.

Arguments by Adv. Karuna Nandy have previously emphasised on the necessity to retain gendered protections offered to women under the law. Additionally, there is a pressing need to extend further protections for queer individuals due to the added vulnerabilities they face. Recognising and catering to these gendered vulnerabilities while adopting laws to accommodate the diverse forms of unions within the queer community is an essential yet complex task that demands careful examination.

OTHER JURISDICTIONS

A lot of countries including the US, UK, Taiwan and Nepal, have already granted the right to marry. They have found those rights in the Constitution. Our courts have done the same with abortion, privacy rights and the transgender category. Yet those seeking recognition of right to marry for LGBTQIA community are criticised as being judicial activists, asking the court to read into the Constitution a right that does not exist. This seems to be a contradiction because in many countries, the right to marry has been found by courts.

However, every legislation and every context are different. Jayna elucidates that SMA is not a simple legislation. The court has validly raised the concerns that a mere replacing of the word ‘man/woman/husband/wife’ to ‘person/spouse,’ will not solve the issue. There are many other sections in the SMA that require more work. The judgement of another jurisdiction, hence, may not directly address the issues of our jurisdiction because our marriage laws are different.

The court provided reasoning for its inability to address certain aspects, despite the various options suggested by the petitioners on how it could have been handled. It was decided by the court that it could not omit certain elements related to personal laws or inheritance. With this judgement in place, the responsibility now returns to the petitioners, the movement, civil society and activists. They need to determine how to progress from here, working towards the acknowledgment of these rights in a constructive manner. This deliberation is essential moving forward.

IMPACT LITIGATION

In this case, the strategy opted was to take 10-12 petitions and go to the Supreme Court. Not all queer persons would have advocated for this strategy. Because of its impact being felt by people who may not have endorsed this strategy in the first place, widespread consultation prior to filing these petitions becomes important.

However, unfortunately, as per Rohin Bhatt this is the nature of the game these days. One petition is filed and 20 more are filed in every matter of public importance, be it Article 370, challenges to CAA or marital rape. Since the judges have been so forthcoming and not shy about speaking about their position, petitioners went in with the optimism that this was the best shot they have had in decades on queer rights.  However, prior consultations are pertinent. For example, consider the new petition that has just been filed seeking reservations for the trans people in the Supreme Court, Subi KV v UoI. A lot of people working for the cause found out that this petition was filed only when the media reported on it. Many lawyers and activists who were working on the horizontal reservation movement were caught unawares. People are rushing to courts and this is not to say that people shouldn’t rush to courts. If your right is violated, you have the full freedom to rush to the court. When you are doing so in cases of PILs where the broader community is affected by the court, there is a need for conversation to take place.

Muskan mentions that from the Naz Foundation, where the biggest criticism was that it did not do consultation, the ethos of consultation has become an integral part of the queer movement. Like the court’s judgement shows, impact litigation is something everyone wants to do because of its emancipatory potential with the law. The court declaring a right can have a large-scale impact. However, that could also be a double-edged sword if not done properly. So, in recognition of that, it is imperative to do impact litigation of this scale with consultation, with ground-level movements and a strategy of approaching High Courts first. It is also important to explore different strategies. Everything cannot come through court. What work we do in the court has to be supported by activism on the ground. With regard to strategy, Jayna suggested that it is time to take up smaller issues that could be a low hanging fruit and which would still perhaps not be affected by this judgement.

This would be a time-consuming process. The argument that time is rushing by and these same-sex couples are getting older is not compelling enough. There is no denying that time is rushing. However, it is rushing for everyone. Jayna points out that women faced domestic violence when the Protection of Women from Domestic Violence Act, 2005 (‘DV Act’) was not in place. They were being killed. Women have been fighting for the recognition of domestic violence not just within the marital home but beyond that. It took a long time and finally the DV Act was passed. Still, it remains to be seen what happens with marital rape. Efforts are in place and work continues hoping that it will not take too long.

WAY FORWARD

There are doubts whether this judgement is final and if a review petition is tenable. Whether a larger bench can overturn this verdict is also a valid question. According to Rohin Bhatt, filing a review petition is a very probable step forward. Throwing ourselves at the mercy of this committee is not the best step to take. There was neither a pleading nor an affidavit to that effect. Rohin argues that it was a dilatory tactic used by the Solicitor General to kick the can down the road and somehow the court seems to have latched on to it. When a constitutional court is called upon to decide on rights, it cannot pass the buck. There is a reason Article 124 provides that the courts are tasked with the final interpretation of the Constitution. It is not for a committee, no matter how high power the committee may be. A committee cannot adjudicate on rights.

Muskan points out that the SC has formed similar committees in the past. However, these committees had their constituents specified, time frames laid down etc. There have been continuous mandamuses where these committees have to report back. However, in this case, none of this has been done. The court has simply directed the state to look into the issues of the queer community and solve it. A five-judge bench would not have been constituted, if this was the intention. If the intervention of the court was necessitated, it was expected to show much more accountability for such a committee.

All the five judges in their opinions have recognised that a committee chaired by somebody no less than a Cabinet Secretary will be constituted to set out the rights available to queer persons in unions. However, it is important to contextualise this next step. Kanav pointed out that the General Elections are scheduled for next year. It is known that this is not an issue most politicians would like to touch. Some of them came out against marriage equality and some refuse to speak about it directly. This is not a politically winning issue, so no party is willing to add it to their election manifesto. Also, one has to be wary about the politicians using the members of the queer communities as pawns, making promises and not fulfilling them. There is a lot of uncertainty about the next step. Lawyers can do something. However, now the buck has been passed on to the people, who will now have to mobilise and try to convince their elected representatives to take up this issue.

However, Kanav raises concerns regarding this. He refers to the politics around gay marriage in the US to clarify his point. The US Congress was trying to pass the Equality Act that would replace certain provisions of the Civil Rights Act and expand the scope to include queer communities. The politics surrounding it had been so partisan that though the law passed the house, it languished thereon. In the 2000s, there were some states that legalised same-sex marriage and some states that banned the same. It became a patchwork of law, similar to what is happening with abortion rights today.

Still, one can expect light at the end of the tunnel. Jayna pointed out that similar setbacks have occurred in the past. The Naz Foundation case was a significant setback, yet eventually progress was made. Navtej judgement came after Naz, so we must consider how to progress from the current situation and strategise our path forward.

According to Rohin, taking the ball back to the Parliament before the 2024 elections would be a fool’s errand. Depending on the results of the 2024 elections, we might need to halt any further action if we want the Parliament to consider it. However, review petitions will be filed and if the reviews are dismissed, curatives will be filed. Even if the curatives are dismissed, fresh cases will be filed before the court to reconsider this matter. Currently, there is no definite correct path forward.

However, there is a need for a greater conversation between those who are in the movement as it concerns the entire community. While it is not necessary to disclose specific legal strategies, it is important to engage in a discussion about the direction and actions moving forward. This is a time for reflection to think where it is going wrong as a movement. The lack of dialogue between the queer movement and the trans movement, due to their differences, seems to have hindered discussions. Discussions regarding horizontal reservations for transgender individuals appear to have garnered less attention compared to the focus on marriage equality. There is a need for greater conversation to be happening within such that these movements do not necessarily become about persons but about the causes.

CONCLUSION

Kanav concluded the discussion by pointing out that there is unanimous consensus in the panel that there is a need to consult the community at large. This has to be a grass-roots movement, similar to how the women’s movement has been for so many years. Delhi and some other cities are going to have their pride parades soon. This is a significant opportunity for the queer organisers to think about what their parcha would have. Parcha is a list of demands from the queer community. It would be good to revisit last year’s parcha and see what has been achieved, what hasn’t and what we want to achieve going forward. Now, the ball is really in our courts. While this is a very concerning verdict for many queer people, it is also important for us to reflect on what the next steps are and what we can gain from it. There is nothing more that can be done right now but to wait and hope that things work out well for everybody.

Anushka Aggarwal and Shwetha Ramachandran acted as rapporteurs and for the panel discussion.