No Indian has the right to marry

Despite dissenting opinions articulated by the Chief Justice of India and Justice Sanjay Kishan Kaul, who accorded recognition to the right to establish unions and jointly undertake adoption, the bench was surprisingly unequivocal in asserting that there is no fundamental right to marriage under the Indian Constitution.

The petitioners, out of their enthusiasm and optimism, had requested the Court to reimagine the contours of the Special Marriage Act (SMA), 1954, to embrace same-sex unions or, alternatively, declare it unconstitutional on the ground that it relegates the diverse LGBTQIA+ community to the margins. The petitioners naturally had great hopes when, attaching priority to their cause, the Court listed the matter for hearing. After months of anticipation, the pronouncement is a profound letdown for the LGBTQIA+ community and constitutional law teachers.

The decision appears to have succumbed to the prevailing ethos of majoritarian morality rather than oft-repeated “constitutional morality”. The judgment would certainly become a classic case of judicial restraint and any government would justifiably celebrate it. The Court firmly expressed its reluctance to engage with any innovative and creative interpretative exercise, citing the limits of its jurisdiction and emphasising the exclusive legislative authority over such matters. Further, the Court emphasised the SMA’s inherently secular and progressive nature, and in rejecting the plea to declare it unconstitutional, underscored the potential regression that might transpire if such a measure were adopted. One would like to see how the Court would react while examining the constitutionality of “love jihad” laws, which are patently against the spirit of the SMA.

Known for delivering progressive and liberal judgments such as Puttaswamy (2017), Navtej (2018), and Sabarimala (2018), Justice Chandrachud’s stance in this matter has significantly disappointed his admirers. Despite acknowledging the extensive scope of Article 32 and the judiciary’s duty to safeguard citizens’ rights, regardless of whether such discrimination arises from state action or inaction, the CJI chose to withhold recognition of non-heterosexual marriages. In Navtej (2018), he had held that “the Court has to be guided by the conception of constitutional morality and not by the societal morality. In the garb of social morality, the members of the LGBT community must not be outlawed or given a step-motherly treatment of malefactor by the society”.

The Court has even restricted the scope of the nine-judge bench in Puttaswamy (2017) by holding that it merely upheld the right to privacy but not to marry. Once a right to union has been accepted as a fundamental right, it is difficult to understand why a right to matrimonial union cannot be derived. The privacy judgment upheld decisional privacy or privacy of choice, which should ideally include the choice of entering into a matrimonial relationship.

Citing institutional constraints, the CJI declined to interpret the SMA to encompass same-sex couples within its ambit. However, this position seems problematic, given the interpretation in Article 15(1) of the term “sex” to include “sexual interpretation”. In paragraph 126, he quoted Shafin Jahan (2018) but reached a contrary conclusion. In Shafin Jahan, the Court accepted that “Our choices are respected because they are ours. Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences.”

The most strikingly feeble aspect pervading the extensive 366-page verdict, consistent in both the minority and majority opinions, is the palpable reluctance to engage in an interpretative analysis of SMA due to apprehensions about encroaching on legislative prerogative. However, such interpretation has not been an unfamiliar terrain for the constitutional courts. Previous cases have witnessed the judiciary imbuing diverse terms with distinct meanings, thereby extending the reach of statutes and amplifying the expanse of rights safeguarded under the aegis of the Constitution. For instance, in NALSA (2014), the word sex was interpreted to give it a wider meaning: “The expression ‘sex’ used in Articles 15 and 16 is not just limited to the biological sex of male or female, but intended to include people who consider themselves to be neither male or female”.

Moreover, various rights, including the right to self-determination of gender, right to information, rights to privacy, dignity and shelter, right to livelihood and the right to be forgotten, which are considered inherent to Article 21, were not explicitly mentioned in the text of Constitution but the judiciary’s liberal interpretation of the right to life and liberty led to the recognition of these valuable rights. Are we going to dilute all judicially created fundamental rights, if yes, it would be turning the clock back.

Once it is conceded that there is a right to association or union, the denial of the fundamental right to matrimonial union is frustrating. Is it not implicit in human dignity and even the right to life if procreation is accepted as the central aim of such unions? Is it not like saying that you have the right to food but not to eat? Assuming the conservative position of procreation being the primary purpose of marriage — though Justice Chandrachud did see its utility beyond procreation — how is marriage is not an extension of the right to life? If the right to marry is just a statutory right, the government may delete its provision from statutes. In the privacy case, the Union had argued that privacy is a statutory right but the Court did not agree. The judgment on this issue must be reviewed and who knows, like in Suresh Kumar Kaushal (2013), judges may change their minds. We must be optimists.

Mustafa is Vice-Chancellor, Chanakya National Law University, Patna. Sharma is a B.A. LL.B student at Aligarh Muslim University. Views are personal