Exclusively excluded

On October 17, 2023, a bench of five judges of the Supreme Court of India, with Chief Justice of India D Y Chandrachud at the helm, rendered its long-awaited judgement in the marriage equality case: Supriyo vs Union of India. In four separate opinions, all five judges unanimously held that the Indian constitution did not confer a fundamental right to marry upon any citizen.

All four opinions delved into the challenges confronted by the queer community in India. Justices Bhatt and Kohli, representing the majority, joined by Justice P S  Narasimha, also acknowledged that while the state may inherently have no role in determining whom two freely consenting adults may choose to marry, its decision to limit access to the institution to heterosexual people adversely affects queer couples and furthers their exclusion.

Yet the majority concluded that despite this exclusion, the state was not obligated to recognise any queer relationship — not even marriages and unions accorded under secular law. Why? Because the issue, they felt, was far too complex for the court to address. Justices Bhatt and Kohli write, “Addressing all these aspects and concerns means considering a range of policy choices, involving a multiplicity of legislative architecture governing the regulations, guided by diverse interests and concerns —many of them possibly coalescing.” As a result, queer couples were left with nothing more than a declaration restating the hardships, trauma, and discrimination they experienced with no legal remedy. The decision was naturally met with disappointment and shock. In response to the judgement two review petitions have emerged. The first, filed by four petitioners (Udit Sood, Saatvic, Lakshmi Manoharan, and Gagandeep Paul), argues that Supriyo suffers from serious errors in legal reasoning, is self-contradictory, and manifestly unjust. The petition relies on three main arguments to bolster this claim: first, that the judgement recognised discrimination but did nothing to remedy it. Second, that the judgement was self-contradictory in its understanding of marriage because it initially recognised that the Special Marriage Act of 1950 conferred the “status” of marriage but then concluded that there could be no right to marry because the terms of marriage and its status are largely set independent of the state. And finally, that the judgement was manifestly unjust because it overlooked the negative impact of the denial of marriage rights to queer people; this, despite the same court concluding just 5 years ago that homosexual people could not be treated as “sub-par humans” by law (Navtej Singh Johar vs Union of India). This review petition thus contends that, in so far as the Supriyo judgement fails to provide any relief to queer couples, it keeps them as second-class citizens under the law. 

The second petition, filed by lawyer Utkarsh Saxena, takes the argument further by clarifying that the petitioner’s initial ask was entirely misunderstood by the court. Queer couples were not asking the court to create a new social institution of “queer marriage”; instead, they were asking the court to strike down the discriminatory exclusion of queer couples from the existing secular legal regime of marriage, as it excluded them simply because of their sexual orientation (sexual orientation is a protected category under Article 15 of the Constitution, which means that the state is prohibited from discriminating against gay people). Thus, for the court to recognise discrimination and not do anything about it was a clear abdication of the court’s responsibilities.

The SC of India is a fascinating institution with wide and varying powers, including the power to review its own judgements. This power emanates from Article 137 of the Constitution, which grants the Supreme Court the power to review any of its judgements or orders, subject to certain conditions. Further, Order XLVII of the Supreme Court Rules, 2013 states that an application for review of a judgement or order must be filed within 30 days from the date of the original judgement or order and should clearly set out the grounds for review to be considered. It is in this context that the two review petitions were filed. 

However, it remains to be seen what eventually comes of this effort. The SC had, on November 23, initially agreed to consider a request for an open-court hearing of the Udit Sood review petition tentatively scheduled to occur on November 28. However, the matter was either never listed or discussed, and as it stands today, the status of the review remains in limbo. If anything, the Supriyo judgement and the emergence of the review petitions should serve as a reminder of the systemic oppression that queer individuals continue to endure in Indian society. This oppression spans from their families to the workplace and encompasses both the public and private spheres. Despite these challenges, some, not all, queer individuals persist in their efforts to establish families and forge meaningful relationships; and yet, as it stands today, they do not have any legitimacy in the eyes of the law. This denial of basic human rights is indeed unjust, more so because queerness is a protected category. But queer people and their allies should not give up. As the famed late Argentine political theorist, Guillermo O’Donnell reminds us — for the rule of law to be substantial, democratic institutions must actively safeguard political rights, civil liberties, and mechanisms of accountability; only then can citizens expect political equality and resist disenfranchisement by state action (or inaction). The SC has both the power and authority to rectify its mistake in Supriyo and ensure that queer couples are treated fairly — one only hopes that the court acts sooner rather than later.

(The author is a Communications Manager at Nyaaya, the Vidhi Centre for Legal Policy and can be reached at [e-mail])