Adjudicating Marriage Equality: An Opportunity Lost or a Bullet Dodged?

The Supreme Court began hearing the marriage equality matter on April 18th. The petitions collectively challenge three key legislations: the Hindu Marriage act, 1955 (‘HMA’), Special Marriage Act, 1954 (‘SMA’) and the Foreign Marriage Act, 1969 (‘FMA’). In the first hearing, the Constitution Bench tried to delineate the exact scope of the constitutional challenge it was willing to hear.  It decided to examine the constitutionality of provisions only under the secular Special Marriage Act, 1954  and leave the question of personal law (HMA) untouched. the Court reasoned that rights ought to be expanded ‘incrementally’. Courts at a later date could decide on whether personal laws were unconstitutional for denying queer couples the right to marry. What are the reasons for adopting this approach?  Are there limitations to adopting such a stance? 

Why did the courts limit the question to secular laws?

The choice to restrict the hearings to SMA appears to be strategic. If the court were to interpret HMA to include same-sex and other queer marriages, the SC would also have to consider related legislations like the Hindu Minority and Guardianship Act, 1956 (HMGA), the Hindu Succession act, 1956 (HSA) and the Hindu Adoptions and Maintenance Act, 1956 (HAMA). These enactments provide a whole bundle of rights dealing with adoption, guardianship and inheritance available to married, heterosexual couples. So, a change in HMA will have a cascading effect on not just the concept of Hindu marriage, but the entire idea of family under Hindu personal law. Many of these laws have gender specific provisions which cannot be moulded automatically to fit a LGBTQIA+ couple.  

Precisely because this case has the potential to catalyse sweeping changes across the body of laws governing the family under Hindu law, the question of SC’s legitimacy arises. As the Solicitor General, Tushar Mehta argued, a non-elected, non-democratic body like the Supreme Court could not drive massive social changes. Deeply held religious beliefs cannot and should not be altered through court verdicts. The backlash faced by the apex court because of its decision in Sabrimala (2018) is a good example of this. 

Moreover, as Tarunabh Khaitan and others note, forcing changes onto the personal laws of the majority community in India could strengthen communal rhetoric by pitting the ‘progressive’ majority against ‘backward’ minorities. Even if the Supreme Court recognises marriage equality but suspends its declaration, allowing the Parliament to enact legislation, it comes with a significant danger. The Central Government may use this opportunity to enact a Uniform Civil Code (UCC)- a long-standing wish of the current Modi-led government. Given the many controversies surrounding the UCC, there appears to be a good reason for leaving personal laws out of the fray for the moment. 

What is lost in the process?

Nonetheless, the matter of recognising marriage equality under religious personal laws, cannot be avoided indefinitely. Therefore, we must also ask what is lost when deciding to test the constitutional validity of only SMA.  

First, the court misses a historic opportunity to clarify conclusively whether personal laws are subject to a fundamental rights review under the Constitution. Constitutional jurisprudence has been patchy on this question. A 1951 decision from the Bombay High Court ruled that personal laws are immune from constitutional review unlike other laws. Judges have tried to bypass this Judgement by creatively reducing its scope to apply to only uncodified personal laws, the 72-year old decision nonetheless poses a roadblock in developing a more radical jurisprudence. Some judges including Chief Justice D.Y Chandrachud have expressed doubt about the validity of this judgement, though it is yet to be overruled. The current plea for marriage equality  could have presented the opportunity to put that controversy to rest once and for all. In doing so, the court would have paved the way for LGBTQIA+ individuals to challenge their exclusion from multiple personal laws in the future.

Second, at a practical level, a significant number of persons still get married under personal law. SMA often acts as a disincentive owing to its cumbersome notice requirements (this has been challenged in the ongoing matter as well). Pervez Moody’s ethnographic work explains why encouraging marriage under SMA is harder than it appears due to biases held by society and marriage registrars in particular. Thus, by curtailing the scope of the hearings to SMA and other corresponding secular laws, the court may inadvertently end up helping fewer individuals than it would have hoped to. 

Third, as Saptarshi Mandal points out, severing the matter to hear only SMA while leaving HMA out of the picture is likely to create legal discrepancy. If SMA is interpreted to include LGBTQIA+ marriages, rights under personal law may nonetheless come into question. For instance, in a special exception carved out in the SMA, when two Hindus marry under SMA, they are governed by Hindu Succession Act, 1956 and not the Indian Succession Act, 1925. However, when a ‘husband’ dies without a will the HSA recognizes only the ‘widow’ as the legitimate heir for the purpose of succession. Given that personal laws are not going to be touched upon in this matter, they will continue to operate only for heterosexual married couples leaving the widowed LGBTQIA+ partner without any claim to their deceased partner’s property. 

Finally, recognizing LGBTQIA+ marriages  under SMA while leaving personal laws untouched would result in a dual scheme of rights for heterosexuals and LGBTQIA+ persons. While heterosexuals would have the choice of deciding whether to get married under SMA or HMA, LGBTQ+ persons would have no choice but to get married under SMA. Principally, if queer marriages  are not recognized incrementally within personal laws, it would mean that many of the rights and remedies available to persons under their personal law framework would be unavailable to LGBTQIA+ couples. This creates two parallel regimes of marital rights in the country based on sexual orientation and/or gender identity and offends basic notions of equality and dignity. After all, all persons should have the same choices regardless of gender or sexual orientation.

While only time will tell whether these petitions succeed, one thing is clear. If the Constitution Bench decides in favour of LGBTQIA+ marriages, the full gamut of civil rights that flow from marriage are unlikely to be conclusively decided in this case. In the future, courts might have to tackle the thorny question of queer marriages within personal laws and determine the cascading effect this will have across the entire body of civil and criminal law.