Marriage equality: Setbacks, silver linings

The much-awaited decision in the marriage equality case was a result that not many expected. It was unexpected in two ways. The first that the Supreme Court unanimously held that there is no recognised fundamental right to marry under the Constitution. Secondly, that the Chief Justice was in the minority with Justice Kaul, while the majority opinion was given by Justice Bhat along with Justice Narasimha and Justice Kohli.

The majority and minority opinions unanimously held that there is no fundamental right to marry guaranteed by the Constitution. Such a finding did indeed come as a setback, because in many ways, it was presumed that the Supreme Court had protected this right as a fundamental right in its previous decisions. However, in this decision, the Court held that the right to marry could only be a statutory right guaranteed under the Special Marriage Act and not a fundamental right. 

The Supreme Court held that in its previous decisions of Shafin Jahan v Asokan K M and Shakti Vahini v Union of India, it had only protected the right of individuals to marry the persons of their choice without fear and coercion and not the right to marry itself. Different reasons were given by the judges for holding that the right to marry is not a fundamental right, including that marriage still is governed by complex personal and customary laws and practices, that there are restrictions on people’s right to choose their partner based on age and prohibited degrees of relationship. Hence given this nature of marriage as an institution, the right to choose a spouse and the right of a consenting couple to be recognised within the institution of marriage is restricted and cannot be a fundamental right. 

Fundamental right?

The rejection of the right to marry as a fundamental right is certainly a setback, not just to the queer community, but for everyone. For example, what would this judgement mean for a woman who wants to marry a person of a different faith, and is unable to do so due to opposition from her family? What would the impact of this judgement be on the pending challenges to the state laws prohibiting marriages based on religious conversions? All of this remains to be seen.

Despite this setback, the judgement does have several silver linings. First, the judgement holds that transgender and intersex persons who identify as male or female, have the right to marry members of the opposite sex under the Special Marriage Act and all other laws. This is a significant development, which will enable members of the trans community who are in heterosexual relationships to get married. 

While some may argue that this right was recognised by the Madras High Court in the case of Arunkumar and Anr v Inspector General of Registrations, where Justice Swaminathan held that one of the petitioners who was a trans woman would fall under the definition of ‘bride’ under the Hindu Marriage Act, the impact of this decision was limited.

The question of trans persons getting legally married even in heterosexual relationships depended often on whether the particular Registrar of Marriages would accept their applications and whether their ID cards reflected their chosen gender identity. This depended on whether they had undergone gender reassignment.

If these were not done, then their applications would not get accepted. All of this has been put to rest by the Supreme Court clearly recognising their right to marry. This may be limited to certain members of the trans community which is diverse, but it is significant nevertheless.

Right to relationships

The majority opinion also held that the right to gender identity and sexual orientation is protected and queer persons had the right to be in relationships under Article 21 of the Constitution. What does this right to relationships mean? Justice Bhat held that this includes the right to choose a partner, cohabit and enjoy physical intimacy with them and to live the way one wishes to. This right also extends to protect the choice of one’s partner and the Court held that whenever their right to enjoyment of such relationship was under threat of violence, the State is bound to extend protection.

Thus, in the exercise of the right to relationships, persons have the freedom from physical threat and from coercive action. The State is bound to afford them full protection under the law. This is extremely important because in a majority of relationships where either one of the members is transgender or in a relationship between same-sex partners, family members can use police action to harass them and also harass people supporting the couple.

Hence, the recognition that Article 21 of the Constitution guaranteeing the right to life and dignity imposes a positive obligation on the State to protect the life and liberty of persons and to ensure that they do not face any threat of violence or coercion and that queer couples and transgender persons are not subjected to any involuntary medical or surgical treatment is an important recognition.

The judgements, I would argue, also unanimously held that there was a need for a law that addresses discrimination faced by queer persons on the grounds of their sexual orientation. While the minority judgements clearly mandated that the State should enact such an anti-discrimination law that would address the stigma faced by queer persons both from the State and private persons, the majority judgement did not make such a positive direction to the State. Despite not making such a direction, the majority opinion did agree that a non-discrimination law would be needed.

Way forward

While this judgement does come as a setback in holding that the right to marry is not a fundamental right, a right that many had taken for granted, it forces us to rethink our path going forward.

For the queer movement, it is important to learn lessons on law reform from other movements, particularly the women’s movement. One of the biggest contributions of the women’s movement in India has been to bring about law reform to address domestic violence within all relationships and not just marriage — including violence from the natal family and in live-in relationships. 

This was achieved by advocating for a separate law to address domestic violence, which included the recognition of the right to reside in the shared household. It was the women’s groups who drafted the law they wanted, which emerged from our lived experiences of violence. They lobbied and campaigned for the law to be passed. This was a 10-year-long struggle, which took the coming together of activists, groups and diverse voices from all across the country to make it happen.

This judgement is a sign for us that in order to get the rights to marriage, civil unions, and all the rights and entitlements that go along with it for the queer community, this long road has to be taken. This road has to be taken along with all the diverse voices and allies, as such law reform would benefit everyone.

(Jayna Kothari is senior advocate, Supreme Court of India.)