On the issues with the Same-Sex Marriage verdict – A grave error in the law

Source: This post on the issues with the same-sex marriage verdict has been created based on the article “A grave error in the law” published in The Hindu on 16^th November 2023.

UPSC Syllabus Topic: GS Paper 2 Governance – Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of vulnerable sections.

News: This article discusses the issues with the recent Supreme Court verdict on same-sex marriages where it held that same-sex couples do not have the right to marry under the Special Marriage Act. According to the author, the court not only laid down a fundamentally wrong interpretation of the Constitution but also overlooked its own precedents.

A detailed article on the Same-Sex Marriage verdict can be read here.

What is the Special Marriage Act, 1954?

Special Marriage Act,1954 is an Act of the Parliament of India enacted to validate and register inter-religious and inter-caste marriages in India. It governs a civil marriage where the state sanctions the marriage rather than the religion.

It allows marriage between inter-faith or inter-caste couples without giving up religious identity or opting for conversion. No religious formalities are required to be carried out under the Act.

What were the observations of the Court on SMA in the same-sex marriage verdict?

1. The court had held in Navtej Johar Case (2018) while decriminalising homosexuality that ‘sex’ under Article 15 also means ‘sexual orientation’. However, the majority judgment justified the exclusion of the Special Marriage Act from its observations in the Navtej Johar Case by saying that the object of SMA was not to discriminate against same-sex persons.
2. The Court further stated that absence of a law (to regulate same-sex marriages) does not amount to discrimination.
3. The minority judgment does not address the issues in SMA by holding that “this Court cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations”.

What are the issues with the verdict?

According to the author, the verdict has the following issues:

1. Against the Right to Equality: When the state refuses to recognise marriages of homosexual couples under the SMA, it violates the constitutional guarantee of non-discrimination (or the right to equality).
2. Refusal to consider an Absence of Law as Discrimination: The judgment stated that absence of a law (to regulate same-sex marriages) does not amount to discrimination. However, this misses the core of the issue. When the state has chosen to refuse to recognise one set of marriages on the ground of sexual orientation alone, it amounts to discrimination.
3. Separation of Powers wrongly interpreted: The Court’s stand of institutional capacity is flawed as it is precisely the institutional purpose of a constitutional court to examine whether the legislation in question is constitutional.
4. Refusal to Tackle Complicated Issues: The Court’s refusal to review the SMA because it will be a complicated exercise is against the established system of constitutional adjudication. This can lead to the Parliament avoiding constitutional scrutiny by drafting laws in a way that requires the court to undertake a complex interpretive exercise.
5. Lack of Creative Interpretation of Law: Reading the Special Marriage Act to take in marriages of queer persons did not require the court to legislate (which would’ve been termed judicial overreach). A creative interpretation of the law would have allowed the court to locate the right of marriage in the law, but it was overlooked.
6. Abdication of Responsibility: In one of the directions of the judgment, the court delegates that a committee be chaired by the Cabinet Secretary to decide the entitlements of queer persons. This is where the court abdicates its role. When a complaint of rights violation is brought before the judiciary, referring the question back to the discriminator (Executive or Legislature) is irrational.

Question for practice:

Illustrate the issues with the recent Supreme Court verdict on the Special Marriage Act, in the context of the denial of recognition to same-sex marriages in India.