The authors, Aryan Panwar and Akshat Raj are second-year students at Dr. Ram Manohar Lohiya National Law University, Lucknow
Featured Artwork: Multicultural Inclusivity LGBTQ Art Print by Etsy
It is certainly undeniable that in a country like India, where traditional and social values are often found clashing with newly evolving interpretations of constitutional rights such as same-sex marriage, a spar over judicial activism and judicial restraint comes at the forefront. Recently, Thailand’s Lower House of Parliament assented to a marriage equality bill, which was recommended by the Constitutional Court of Thailand as the one previously in operation only recognised heterosexual couples. The role of the judiciary in these matters is examined carefully, the question of whether the courts merely interpret laws or can go beyond their domain to protect and recognise the evolving fundamental rights of individuals somewhere gets stuck between competing judicial activism and restraint.
Judicial Activism vs. Judicial Restraint
Judicial activism is the philosophy of interpreting the law in terms of prevalent societal norms instead of making judicial pronouncements merely based on textual interpretation of the black letter of the law. Courts now do not just remain mere spectators and have endowed upon themselves the duty of positive interpretation of the law when it comes to questions of human rights and equality and this can be seen in the catena of judgements that empower the notion of judicial activism within the Indian and foreign judicial sphere. Creative judicial activism has, for a long time, been a subject of debate in the Indian constitutional milieu. The biggest question that stands in the practice of judicial activism is when does such activism become a violation of separation of power and transforms into judicial legislation. The Principle of Separation of Power in India originated in the 17th century with the sole motive of preventing the centralisation of power in one organ of the government to the detriment of the exercise of power of the others.
The Constitutional Foundation for Marriage Equality
Spurred on by a feeling of hope, members of the LGBTQ+ community approached the Supreme Court in order to get relief from the discrimination faced through legislation governing marriages, which did not recognise a marriage between two people belonging to the same sex. The judicial pronouncements in this regard constitute a solid standing as to how marriage is an aspect of the dignity of the individual. The court also recognised that India “is a free and democratic country, and once a person becomes a major, he or she can marry whosoever he/she likes,” similarly in one of the most celebrated judgements of the Indian judiciary, Puttaswamy case, the bench observed that family, marriage, procreation and sexual orientation are all integral to the dignity of the individual and hence brought marriage under the wide ambit of Article 21. Further, in the judgement of Shafin Jahan v Ashokan K.M., the bench observed that “the right to marry a person of one’s choice is integral to Article 21 of the Constitution” and in his concurring opinion, Justice Chandrachud observed that “the strength of the Constitution, therefore, lies in the guarantee which it affords that each individual will have a protected entitlement in determining a choice of partner to share intimacies within or outside marriage.” The question in the marriage equality case, therefore, was not whether there exists a fundamental right to marry, but the question was whether there exists discrimination for someone marrying a person of the same sex, as compared to a heterosexual person, in access to the institution of marriage. The misinterpretation of this question also contributes largely to the final outcome of the Supriyo judgement. While the judgements of Lata Singh and Shafin Jahan resolved the disputes of inter-faith and inter-caste marriages in light of the Special Marriage Act (SMA) of 1954, the SMA also contains within itself the provision for secular civil marriage for the people of India and all Indian nationals abroad, regardless of their religion or faith. A liberal interpretation of the same would suffice in a way that encompasses same-sex couples within its ambit and the same was the case and demand of the petitioners in the marriage equality case. As of now, the language of the SMA includes the reference to “male” and “female” and other heteronormative terms, excluding same-sex couples from its purview.
There exist landmark cases like Navtej Singh Johar v. Union of India (2018), where the Supreme Court emerged as a pioneer for sexual equality by decriminalising consensual same-sex relations and observing that sexual orientation is a matter of individual choice and cannot be a ground for discrimination, making this case a big win for the LGBTQ+ community. However, the issue of marriage equality remains unaddressed before the constitutional jurisprudence with review petitions lying against the judgement delivered in the Supriyo case.
The Supriyo Judgment And No Fundamental Right To Marry
The people behind the cause for marriage equality anticipated and laid great faith in the Supriyo judgement as an example of the judiciary’s proactiveness in safeguarding the rights of the people. However, the final delivery of the judgment dealt a heavy blow to the many expectations from the court for a liberal interpretation of the law. After intense argumentation, the Supreme Court finally came to the unanimous conclusion that there existed no fundamental right to marry for heterosexual or homosexual couples; furthermore, with a 3:2 majority, the court also observed that same-sex couples could not enter into civil unions or adopt. The judgment came as a shock for the people as it rolled back years of progress made in the field of queer rights in India. The main essence of the judgement lay in the fact that the court considered itself to be not the right forum for the demand of such a right that remains statutorily unfounded under the purview of the SMA. It further stated that declaring a part of progressive legislation, the SMA would open a pandora’s box of difficulties for the state.
The judgement is wrought with various paradoxes and instances of fallacious reasoning that fail to properly explain the stance of the court and its rationale for denying equal treatment to homosexual couples. Firstly, it is to be observed that Article 32 does not only provide the court with the power to recognise the violation of fundamental rights, but also confers upon it the power to remedy such violations. The non-sequitur nature of the remedy brings forth a paradoxical nature in the approach of the court in the sense that when the court is empowered to recognise a violation of fundamental rights and issue an appropriate remedy for the same, why did it choose not to do the same after recognising in paragraph 148 of the judgement that there is a violation of Article 15. The same is one of the grounds taken by the petitioners in their review filing against the Supriyo judgement that it remains unfounded in the Indian constitutional jurisprudence that the court explicitly recognises a violation of a fundamental right but does nothing to remedy it or provide relief., In this instance, a mere reference to the separation of powers falls short of the duties that were expected of the court.
The proactive approach of the judiciary is widely apparent in the field of marriage while recognising the rights of inter-caste and inter-faith couples, and the same has been mentioned above. The recognition of marriage forming a part of the dignity of the individual by itself brings the same under the ambit of Article 21, imposing on the state a positive obligation to protect it and prevent any discrimination in the said sphere. Recognising that no fundamental right to marriage exists but a fundamental right to a partner of choice exists passively empowers the notion that while all couples, homosexual or heterosexual, can choose whom they wish to be with, the state would only accord protection and a bouquet of rights to the ones that its legislations deem fit, even if they constitute a violation of the fundamental rights. Judicial activism, in principle, remains a proactive approach to safeguard rights in the sphere of constantly evolving societal norms; the court, in this instance, neither exercised what we could call activism nor did it fulfil the duty expected of it.
The court further refused to engage with the existing international legislations and norms that provide for a non-discriminatory approach towards homosexual couples in all aspects, including marriage. The courts have had a history of placing reliance on international norms to bring forth an advancement to deliver judgements in line with international norms and promote judicial activism in times of need. However, in this instance, the courts did not even refer to guiding human rights legislation like the UDHR or the ICCPR. Not only in India but even in the U.S., for the matter at hand, before the landmark case of Obergefell v. Hodges, a significant number of courts carried over to the state legislation in cases of same-sex marriage and ended up facing backlash from the public.
In stating that no fundamental right to marry exists, the court overlooked an unintended consequence of what such a pronouncement might lead to. Recognising that there exists no fundamental right to marry, the courts overlooked the consequences it would cause if some state were to bring anti-conversion laws with regard to marriage or some law were to be brought that denied marriage between an Indian and a person from a different nation on grounds of national security. If this were to be actually done, judicial activism, in the sphere of marriage inter-faith or inter-caste, would be rolled back as a consequence of the court not exercising activism and observing restraint to the extent that it decides the matter falls within the competent jurisdiction of the legislature.
What Could Have Been Done Instead?
The answer to this question lies in the judgement itself. The proposed solution for this issue comes from the heart of the solution of the South African Fourie judgement, which lay in the same sphere of recognising marriage between same-sex couples. The gist of the Fourie judgement lay in the principle of suspended declaration of invalidity in which the court recognised that there is a violation of the rights of homosexual couples and that the same needs to be remedied. However, instead of immediately striking down discriminatory laws or provisions, the court declared that their invalidity would remain suspended for a particular time period, during which the legislature would have the opportunity to align the provisions with the rights of the people affected. The bench in the Supriyo judgement did engage with this judgment but came to the conclusion that such a practice of suspended declaration of invalidity remains unfounded in the Indian constitutional scheme. What we put forth as a proposed solution is that a similar remedy should have been crafted by the Indian judiciary and then the legislature be given a specific time period within which the discriminatory provisions would have to be corrected. The argument that such a practice does not exist in the Indian judiciary falls flat when we consider the judgments of Indra Sawhney and Sampath Kumar, wherein the judiciary gave a certain time period to the legislature to correct discriminatory or unconstitutional provisions before the coming into effect of the declaration of the invalidity of those provisions. It can be observed that the suspended declaration of invalidity in the Fourie judgement derived its legitimacy from the constitutional scheme of South Africa, and no such scheme within the Indian constitution exists; however, herein would come into play the principle of judicial creativity, which goes hand in hand with judicial activism. The powers of the court under Article 32 are plenary and unfettered by any legal constraints and the wording of Article 32 itself makes this clear – “The Supreme Court shall have power to issue directions or orders or writs, including writs.” The remedies that can be provided under Article 32 are not limited to writs. They could be any order or direction that aims to safeguard any right conferred in Part III of the constitution, and flowing from this, a suspended declaration of invalidity would constitute an appropriate order under the scheme of Article 32.
Conclusion: Balancing Scales
The Indian Judiciary, from time to time, was seen taking a progressive stance while safeguarding the fundamental and constitutional rights of Indian citizens. Though recognising the discrimination against same-sex couples, the courts left the issue unaddressed, lying in the hands of parliament. The courts that have the power to provide remedies in instances of violation of fundamental rights shied away from their duty by first explicitly recognising a violation and then declaring that the cure to such violation would violate the separation of powers. This, instead of being judicial activism or legislation, forms neither. The solution that originates from the South African Fourie judgement puts forward the “Suspended Declaration of Invalidity”, which will balance out judicial activism and restraint. Such an act would have exercised the right proportion of judicial activism and restraint, neither of them overstepping their bounds into the others’. Through this, the legislature would be afforded the time to bring in the desired amendment, and the courts would be able to recognise marriage equality, bringing homosexual couples at par with heterosexual couples.
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