[This is a guest post by Kartik Kalra.]
In October 2023, the Supreme Court delivered its judgment in Supriyo @ Supriya Chakraborty v. Union of India, holding that the Indian Constitution granted no right to marry, and the heteronormative conceptualization of marriage under law could not be tested at its anvil. Accordingly, the exclusion of non-heterosexual persons from marriage and adoption was upheld.
The judgment was based on multiple questionable propositions, a few of which were either wholly incorrect or internally irreconcilable. For instance, the majority, led by Bhat, J., held that an ‘intent to classify’ standard be invoked to assess the scope of the classification made by Special Marriage Act, which – owing to Parliament’s inability to conceive of the possibility of non-heterosexual marriage at the time of enactment – enabled the conclusion that the Act did not classify between heterosexual and non-heterosexual couples at all. Accordingly, no qualms could be raised against its discriminatory implications, for discrimination based on sexual orientation was unintended. On the other hand, the classification in the adoption regime – though similarly beyond Parliament’s imaginative limits at the time of enactment – was found existent, though its remedial was delegated to Parliament. Another facet of the judgment’s grand inventions was its finding that the Constitution granted no right to marry by creating multiple never-before-seen standards, which held rights external to the state or those coloured by state action ineligible to be elevated to a constitutional status.
Such reasoning, apart from being critiqued extensively at the time the judgment was delivered, became the subject matter of review petitions filed before the Court. These petitions pointed towards ‘errors apparent on the face of the record’, i.e., clear and obvious mistakes in a judgment whose deciphering did not require extensive reasoning, and the judgment’s commission of a ‘miscarriage of justice’, a ground for review legitimized in Kantaru Rajeevaru v. Indian Young Lawyers Assn. – the Sabarimala review judgment. In an order passed in January, the review bench held that the judgment suffered from no errors, whose views were ‘in accordance with law’.
Accordingly, a comparative assessment of a litigation strategy towards marriage equality, which assesses the pitfalls in the Supriyo litigation and facilitates clarity towards discriminatory legal provisions which must become the focal point of litigation henceforth, is important. I make two submissions in this regard – first, that the present litigation was preceded by insufficient pedigree ripe for the court to invoke to confer equal marriage, which stands substantially in contrast with Canadian, South African and American strategies which developed a strong foundation for the eventual challenge to marriage-based discrimination; and second, that such strategic litigation – despite the outcome in Supriyo – should take to the forefront now, aiming to collect a set of relatively easier victories which may eventually necessitate Supriyo’s reconsideration. I identify five such avenues of sexual orientation-based discrimination that continue to persist, which, if challenged successfully, would provide strong grounds for Supriyo’s reconsideration.
Aiming for the Moon? Steps Towards a Judicial Recognition of Equal Marriage
Employing the litigation route towards equal marriage has been a global phenomenon, and cases from two jurisdictions – Canada and South Africa – indicate certain preconditions which may enhance chances of an eventual victory.
In Canada, the Ontario Supreme Court’s judgment in Halpern v. Canada spurred its nationwide legislative recognition of non-heterosexual marriage, but was preceded by a set of constitutional challenges that made this appear as a natural next step. In Egan v. Canada, the confining of spousal allowances – a form of social security available to spouses beyond the age of sixty whose income fell below a certain threshold – exclusively to heterosexual unmarried couples (alongside heterosexual married ones) was upheld since the measure aimed to ‘accord support to married couples who were aged and elderly’. The judgment, however, recognized sexual orientation as a ground analogous to grounds on which discrimination was wholly prohibited, laying the groundwork for a later challenge to employment-based discrimination justified by legislation that permitted it through omission.
In Vriend v. Alberta, a non-heterosexual teacher’s employment was terminated by a college based on its ‘policy…on homosexual practice’. Relying on Egan’s elevation of sexual orientation to an analogous ground, the Canadian Supreme Court found local legislation’s exclusion thereof invalid, finding under-inclusiveness to result in prohibited discrimination. Consequently, in M. v. H., the exclusion of non-heterosexual couples in availing spousal support from one another was invalidated by subjecting it to proportionality-based scrutiny, which found the objective of safeguarding the interests of vulnerable heterosexual women insufficiently furthered by non-heterosexual couples’ exclusion. These cases constituted the pedigree for Halpern’s recognition of equal marriage, for it portrays the case-by-case whittling down of marriage’s heteronormative conceptualization, and enables equal marriage an outcome the court was comfortable in delivering.
A similar strategy of incrementalism was adopted in South Africa, which had the advantage of an organizational ‘support structure’ in the form of the Lesbian and Gay Equality Project (‘LGEP’), an organization intervening in multiple cases – each case successively raising its ambitions in its asks from the court – on non-heterosexual rights. Judgments in these cases (litigated by LGEP and otherwise) led to the striking down of the sodomy offence, the facilitation of non-heterosexual persons’ partners’ immigration into South Africa, the extension of pensionary benefits to deceased judges’ surviving non-heterosexual partners, the extension of joint adoptions to non-heterosexual couples, and the conferral of legitimacy to children born using artificial insemination whose parents were ‘permanent same-sex life partners’. In Minister of Home Affairs v. Fourie – the judgment recognizing equal marriage – this series of case-law was endorsed by Sachs, J., with scholars reading the judgment as being ‘inevitable… given the nature of the jurisprudence on sexual orientation discrimination developed by the Court…’. A wise litigation strategy premised on incrementalism, therefore, was able to secure meaningful victories over clearly discriminatory provisions, paving the way for the eventual push for equal marriage.
Here, incrementalism aligns with a concern identified in approaching courts for remedies which require the immediate, sudden displacement of long-standing social norms: the ‘risky argument’ thesis. Suzanne Goldberg, in reference to the American experience in litigating for equal marriage, highlights the utility of small, discrete arguments that hinge on well-established constitutional doctrine, whose successes, in turn, can constitute a foundation for equal marriage. Lawrence v. Texas, Romer v. Evans and United States v. Windsor – three cases that addressed the decriminalization of sodomy, the prohibition on conferring a ‘protected status’ on non-heterosexual persons, and the legislative prohibition on the state recognition of non-heterosexual marriage – were decided by using an ‘anti-targeting’ approach which pointed simply to the unfairness in one class’s singling out, and the legislative animosity underlying the state measure. Since this argument required little initiative in condemning ‘sex-based distinctions and stereotyping embedded in the different-sex marriage requirement’, it posed relatively lesser discomforting asks from judges, who accepted the demands before them with greater ease. This incrementalism – both in matters litigated and arguments adopted – assisted the American pursuit of equal marriage through litigation.
Deciphering Strategy in Supriyo – Expectations of Benevolence, Judicial Irresponsibility
The main difference between Supriyo and the Canadian, South African or American approaches, however, lies not in its choice of a distinct strategy (the use of risky arguments over discrete ones, for instance) or its unwillingness to invoke previously decided non-controversial cases – it lies, instead, in strategy’s notable absence. This was caused both due to the decision to litigate equal marriage directly without securing certain initial victories essential to dispel judicial discomfort in leading sudden social change, as well as securing a strong foundation which – as Pierre de Vos articulates – makes equal marriage appear ‘an inevitability’. The Court, however, played a major contributing role in disrupting any workable strategy through its deliberate transferring decision, and its non-adjudication over challenges to secular enactments other than the Special Marriage Act.
Cases challenging numerous aspects of equal marriage – the recognition of foreign-solemnized non-heterosexual marriage, the granting of spousal status to OCI cardholders’ same-sex partners, as well as the ‘reading in’ of gender-neutral terms to substitute the Special Marriage Act’s gendered terminology – were filed in the Delhi and Kerala High Courts, which the Supreme Court transferred to itself at the litigation’s outset. The Court, therefore, foreclosed the possibility of multiple judicial opinions approaching these separate issues, which would – in their form as distinct issues concerning distinct enactments – have otherwise remained open for appeal before the Supreme Court individually. This enabled an open-and-shut case on the Special Marriage Act and the adoptions regime, and the validity of the latter’s most offending constituent – an Office Memorandum issued by the Central Adoption Resource Agency (‘CARA’) which prohibited members of a live-in relationship (a category which inevitably includes cohabiting members of a non-heterosexual relationship) from adopting even in their individual capacities – was left unanswered by the majority judgment. The Court, therefore, dismantled any possible deployable litigation strategy through its decision to transfer to itself cases which might have opened new perspectives to attain equal marriage, and then decided on a singular aspect of the litigated issues with silence on all others.
The Court, speculatively, was presented with a flurry of risky arguments in substantive proceedings, and was overwhelmed by the degree of likely legal-social changes it was required to propel for a meaningful affirmative decision. Additionally, the presence of the then Chief Justice on the five-judge bench deciding Supriyo, who also headed the bench which enthusiastically transferred cases to itself, might have developed expectations of substantial judicial will in conferring equal marriage, and the appearance of a benevolent bench may have tempered excessive preoccupation with strategy.
Nevertheless, the decision to litigate equal marriage in the first place deserves attention. It is unlikely to be anyone’s claim that Indian judicial opinion – as opposed to Canadian, South African or American – is more accommodative of, or supportive towards the queer community’s concerns. Accordingly, since judicial discomfort with introducing radical change, particularly change of the kind introduced by equal marriage, was expressly deciphered elsewhere, an expectation of the opposite in India may be unwise. Navtej was, and continues to be the sole decisive judgment finding state action contrary to the queer community’s interests invalid, and many provisions – those discussed in the following section – provided lower-hanging fruit to be litigated before the ultimate pursuit for equal marriage.
Avenues for Initial Victories in Indian Law – Towards Supriyo’s Eventual Reconsideration
Prior to making a demand as unsettling as equal marriage comprising multiple risky arguments before Indian courts, it would have been wise to first challenge a few legal provisions that yielded easier findings of unconstitutionality and enabled courts to lead the creation of remedies. Five such provisions, which may now become a focal point of litigation to seek Supriyo’s eventual reconsideration (or at least that of its highly damaging propositions) are the following:
- s 144 of the Bharatiya Nagarik Suraksha Sanhita 2023: This is the new criminal laws’ rendition of the hitherto s 125 of the Criminal Procedure Code, which confines the availability of spousal support – particularly from the married husband – towards the wife. Akin to the Canadian challenges in Egan and M. v. H., the unavailability of spousal support inter-se non-heterosexual couples can be litigated by an aggrieved party as impermissible under-inclusiveness in reference to existing case-law, for economic dependence and vulnerability is not a characteristic unique to heterosexual relationships, and their exclusion is of no assistance to its present beneficiaries. The Court’s recognition of maintenance’s availability for members of a live-in relationships can bolster this challenge.
- s 2(11) of the Employee State Insurance Act 1948; Paragraph 2(g) of the Employees’ Provident Funds Scheme 1952: These provisions make a worker’s ‘family’ the beneficiary class of the sum of state insurance or provident fund, and define it heteronormatively, i.e., as a unit consisting a husband for a female, and a wife for a male. The EPF Scheme additionally disables a nomination in favour of a person outside their family, making members of a non-heterosexual relationship ineligible to nominate their partners to collect EPF sums after their death. This may be argued as the law’s facilitation of the queer community’s economic vulnerability, and be challenged from this lens.
- Unavailability of ‘family floater’ health insurance: Health insurance policies can be taken either individually or as a family unit, with the latter being preferable due to lower premiums owing to risk diversification among family members. State-owned insurers such as the Oriental Insurance Company and National Insurance Company, in their policy documents, define the term ‘family’ to include a ‘legally wedded spouse’ and ‘spouse’ respectively, excluding members of non-heterosexual relationships from availing health insurance with affordable premiums. This can be challenged as a deprivation of the queer community’s right to health by state-owned insurers. In the private sector, however, the availability of family floaters lies at insurers’ discretion, though meaningful steps have been taken in this regard.
- Pensionary benefits for members of armed services, civil services: Pensionary benefits become available to family members of a deceased servant of the armed or civil services, but the term ‘family’ – under a plethora of applicable rules (see, inter alia, here and here) – remains defined heteronormatively. A challenge by an aggrieved member of a non-heterosexual relationship deprived of pensionary benefits following the death of their partner – a state servant – may take the perspective of a deprivation of their right to livelihood. This is because rules on pensionary benefits approximate economic dependence on the deceased state servant, and list the relationships most likely to correspond to such dependence. For instance, Regulations 66 and 107 of the Army Pension Regulations 2008 define ‘family’ to include a ‘lawfully married husband/wife’, parents and unmarried siblings. Identical economic dependence would subsist between members of a non-heterosexual relationship, and their deprivation of pensionary benefits would undermine their livelihood.
- Litigation on CARA’s Office Memorandum: Theconstitutionality of CARA’s OM, which forbids members of a live-in relationship from adopting even individually, was left in a state of flux by the majority judgment in Supriyo. Bhat, J., despite noting that the law made ‘no restriction other than on a single male being barred from adopting a girl child’ in the adoptions context, did not address the OM’s validity. Principles from Supriyo acknowledging the wholesale bar created for non-heterosexual persons to adopt, particularly in its requests to Parliament to enable joint adoption, would be useful in this regard.
Conclusion
On this basis, I submit that the judgment in Supriyo lacked a strong foundation in precedent invalidating discriminatory provisions that were lower-hanging fruit, which would have enabled easier findings of exclusion and the creation of court-led remedies. The Supriyo litigation had been critiqued at its outset for subordinating immediate concerns of ‘health, education and employment’, as well as for insufficient community consultation preceding it. In case detrimental propositions laid down in Supriyo, such as the refusal to recognize discrimination’s existence when it occurs beyond legislative imagination are to be reconsidered, a set of decided case-law recognizing spousal support, economic vulnerabilities, adoption and insurance would be useful. This incremental path towards Supriyo’s reconsideration may illustratively concern the above five provisions, alongside, say, challenges to the legislative vacuum on the prohibition of non-consensual non-heterosexual intercourse, prohibitions on blood donation, and a reconsideration of case-law excluding queer relationships from domestic violence law. These may become the focal point of litigation henceforth.
