In an important decision rendered on October 17, the Indian Supreme Court addressed a critical issue that was eagerly anticipated by the LGBT community: Whether there exists a right to same-sex marriage or a similar union. There is no denying the fact that a judge, however broadminded and relief-oriented she may be, cannot override the black letter of the law. That being said, amongst socially conscious judges, one typically finds two categories of judges. There are those who, notwithstanding the existing legal constraints, push the boundaries of the existing legal landscape to ensure that a minority group is not left in the lurch and there are those who are only willing to grant relief to the extent legally permissible. This split is evident in the marriage equality verdict also.
At the heart of this ruling, one can discern a clear divide among the justices, with the minority (Justices Chandrachud and Kaul) pushing the boundaries of the existing legal framework and Constitutionalism to provide relief to the marginalised minority and the majority (Justices Bhat, Kohli and Narasimha) limiting themselves strictly to the cold black letter law.
All judges agreed on one thing: The existing legal framework in India regulating marriages clearly, either directly or indirectly, discriminates against LGBTQ individuals. It was on the question as to what the court can do to address this discrimination that the majority and minority took different paths. Chief Justice Chandrachud’s minority opinion, joined by Justice Kaul, embodies a spirit of empathy and inclusivity, in some measure, recognising the urgent need to address the discrimination faced by LGBTQ individuals. It was perhaps this recognition that led them to flesh out the idea of an intimate association/civil union, a legal construct that would have provided the relationship between LGBTQ couples a Constitutional home. To operationalise this legal construct, they issued a slew of consequential directions, to ensure that all government and law enforcement agencies do their bit to make such associations a regular feature of our everyday lives. Their approach was rooted in the principle that the law is not an end in itself but a means to achieve justice. They recognised that even if only one path to granting relief exists, and there are ten that do not, a truly great judge is the one who will ardently seek that solitary way to grant relief. Empathy, they believed, must be manifested not in words alone but in concrete actions and legal remedies.
To be sure, the minority did not go far enough. They could have issued a suspended declaration of invalidity, directing Parliament to remedy the discriminatory state of affairs in a manner it sees fit, within a time-frame set by the court. This remedy has been adopted in India before. Alternatively, they could have issued a continuing mandamus to oversee the functioning of the committee, chaired by the Cabinet Secretary, that the government has undertaken to form. Such supervision would not have meant that the Court was taking over the running of the committee. But it would have ensured that the solution proposed by the committee is in consonance with the rights recognised by the Court — an outcome that many credibly fear will not come to pass, given the social location of the queer community in India today. That said, there is no doubt that the solution of an intimate association, albeit imperfect, would have marked a meaningful advance in enhancing the dignity of queer couples.
On the other hand, the majority opinion appears to belong to the second category. What is missing from the majority opinion is a willingness to provide to the petitioners some relief consistent with the black letter of the law and the Constitution. This approach has given rise to the valid criticism that they provided little more than judicial platitudes.
The crux of the matter lies in the belief that the law, and legal constructs, as a tool for achieving justice, must adapt to the evolving needs of society. It is not sufficient for judges to merely express empathy for an oppressed minority group. The real test of judicial greatness lies in their ability to navigate the legal maze and find a way to grant relief, even if it requires them to think in unconventional ways. When a minority group approaches the court for relief, it is very easy to put one’s hands up and say, “sorry, too bad”, and to justify it on the basis that the law made me do it. It is much harder to go the extra mile and fashion a solution. The issue of the legal recognition of same-sex marriage is without question a polycentric and multidisciplinary issue that no one court judgment can resolve. Equally, the court, as a countermajoritarian institution, has to provide concrete reliefs that help in levelling the playing field in the legislative process. That this need was entirely lost on the majority is profoundly disappointing. One hopes that a court considering this issue in the future will not stop short at passively recounting the discriminatory practices that this minority group faces but will actively make a meaningful contribution to rectifying the same.
The writer is Attorney, Ira Law, Senior Associate Fellow, Vidhi Centre for Legal Policy, Rhodes Scholar (India and Linacre 2018), University of Oxford and co-Founder, Mission Accessibility