Understanding The Supreme Court's Anxieties Over Marriage Laws

The constitutional challenge to the Special Marriage Act (SMA) is common amongst all petitions. Marriage in India is regulated through uncodified religious personal laws (like the Quran), codified religious personal laws (like the Hindu Marriage Act, the Christian Marriage Act, or the Parsi Marriage and Divorce Act), or the secular SMA, which is not restricted to marriages amongst members of a specific religion. In fact, it was introduced as a ‘non-communal and non-sectarian measure’,? ‘meant to be all-pervasive’, and provides the legal basis for inter-faith (and often, inter-caste) marriages in India.

The petitioners challenge Section 4(c) of the SMA, which requires that ‘the male’ have completed the age of 21, and ‘the female’ the age of 18, for a legally valid marriage. This provision, on a plain reading, excludes marriages between same-sex couples. The petitioners also challenge the notice and objection requirement within the SMA, which requires an intending couple to provide a notice of 30 days to a marriage registrar, including names, photographs and addresses of the parties, to be displayed on a public notice board. Any third party is, then, allowed to raise objections to the marriage, on the basis of which the registrar can refuse to solemnise the marriage. The petitioners point to the adverse consequences of this requirement, documenting the harassment of inter-faith, inter-caste, and now potentially same-sex couples.

The five-judge bench of the Supreme Court was immediately on board with the petitioners about constitutional values of life, personal liberty, dignity, privacy, and equality supporting their case. The Court remarked that they agreed with the ‘theoretical underpinnings’ of the petitioners’ arguments, which, in isolation, were an ‘easily achievable target’. The Court also termed the notice and objection requirement ‘invasive and patriarchal’.

Are we, then, just a few hearings away from the Supreme Court mandating marriage equality? Unfortunately, it does not appear to be that simple. The proceedings suggest that the Court is besieged by concerns around the implications of its decision. An oft-repeated phrase amongst the judges at the hearings has been ‘how far can the Court go?’ Unpacking this weighty question, I identify below the Court’s three, principal anxieties, and look to understand each better.

The Special Marriage Law Anxiety

The Court’s first concern is that the SMA was enacted keeping heterosexual couples in mind. Reading the SMA to embrace same-sex relationships would, then, be difficult. And, even if possible, this reading would undo the legislation’s very foundations, amounting to, the Court worries, re-enacting it in some form, which is beyond its purview.

While the Court is correct that the drafters of the SMA in the early 1950s did not envisage same-sex marriages, this does not mean that the SMA cannot be read to accommodate them. Several provisions of the SMA are gender neutral—referring to ‘two persons’, ‘the parties’ or ‘either party’ and not ‘man and woman’—or can be read in a gender neutral manner. Those provisions that are gender specific will, however, require modification to make them applicable to same-sex couples. Arguably, such a modification would be in line with the SMA’s legislative vision of functioning as an ‘all-pervasive’ marriage legislation.

On the Court’s concern that this reading would amount to rewriting the SMA, it is important to remember that the Court does not have to do the actual redrafting itself (which would, certainly, be beyond its mandate). It only has to set out constitutional guiding principles, and require the legislature to bring legislation in conformity with these values. This also allows the democratic exercise to inform the eventual legal framework, addressing the critique that courts are usurping the voice of the people. Crucially, this course of action is not new in India. In 1997, the Court asked the legislature to bring in a law tackling sexual harassment in the workplace, based on broad principles identified by the Court. Similarly, in 2014, the Court required a law to be introduced recognising transgender persons as the third gender, building on specific constitutional values. The Prevention of Sexual Harassment Act 2013, and the Transgender Persons (Protection of Rights) Act 2019 are products of this deliberative exercise. During the same-sex marriage hearings, the bench, in fact, acknowledged that this route was open to them.

The Network of Laws Anxiety

The Supreme Court’s second anxiety rightly locates the SMA within an expansive network of secular laws that govern marriage, and more importantly, the entitlements that flow from it. Like the SMA, these laws also code marriage along the gender binary. The Court’s decision to recognise same-sex marriage would, then, have ripple effects across a vast legislative space. Identifying this, the judges ask:

“Marriage is a bouquet of rights—adoption and social security issues. If we declare using the SMA, can we stop here from there? How many follow ups will we play? The major task of re-enacting other laws. Who will do it? Is this our job? How many more litigations after this?”

While the Court’s questions are sound, its answer, once again, could be a direction to the legislature to amend, as it deems fit, the relevant network of laws, to bring them in line with constitutional values recognised by the Court. If it is legitimate for the Court to ask the legislature to amend one law (the SMA), why would a direction to amend several (the network) be less legitimate? The Court may even draw inspiration from comparative constitutional contexts. The South African Constitutional Court, for instance, in 2005 declared same-sex marriages as constitutionally valid. Following on, the South African legislature introduced the Civil Union Act of 2006, legalising civil unions for all, including same-sex couples. The Act clarified that ‘marriage’ under any existing law would, from then on, be understood as including ‘civil unions’, with ‘husband’, ‘wife’ or ‘spouse’ including the ‘civil union partner’. A similar option remains viable for the Indian Supreme Court too.

The Personal Law Anxiety

While the Court’s previous anxieties can be resolved comfortably through an approach already familiar to the Court, the third anxiety raises thorny questions for the Court. It revolves around the SMA’s intimate interaction with codified personal law. The judges agonise that, “If we read into the SMA, there will have to be changes in other personal laws as well. There is no shying away from this.” For instance, while Section 21 of the SMA provides that succession for marriages solemnised under it would be governed by the secular Indian Succession Act 1925, Section 21A states that Hindus, Buddhists, Sikhs or Jains marrying under the SMA would continue to be governed by Hindu personal law (the Hindu Succession Act 1956). This law, however, understands marriage as a union between a man and a woman. If so, Section 21A could not be made operative unless the definition of marriage under Hindu personal law is also changed.

If the Court can ask the legislature to amend the SMA, and the accompanying network of laws, why not also ask for changes to the Hindu law? The principle does not translate because courts in India have historically kept personal law, both codified and uncodified (like the Vedas, or the Quran), out of constitutional scrutiny. Whether motivated by the belief that religion ought to be excluded from constitutional rationality or driven by the fear of backlash and religious strife—set against post-Partition attempts at ensuring religious harmony—courts have refused to intervene when the validity of personal laws is in question. Recent Supreme Court decisions, however, have expressed doubts about this trend. In the Triple Talaq decision, the Court even tested codified personal law (the Shariat Act of 1937) against constitutional standards of equality. However, uncodified personal laws remain alien to constitutional assessment. And, overall, the Court’s reluctance to intervene within the personal law space holds strong.

This reluctance is on full display in the Court’s response to the same-sex marriage litigation. The petitions challenged not just secular marriage laws like the SMA but also personal laws like the Hindu Marriage Act (HMA). The HMA, being codified personal law would, technically, be open to constitutional challenge as per the Court’s ruling in the Triple Talaq decision. Yet, on the first day of the hearing the bench clarified that it would proceed only in an ‘incremental manner’ without venturing into testing religious personal laws, including the HMA. The hearings are thus confined to the SMA.

The Court’s third anxiety, then, has deep roots in Indian constitutional law’s approach to religion. To address this concern (unlike the first two) a fundamental shift in the Court’s position on personal laws is necessary. The scoping out of the HMA indicates that the Court remains hesitant to initiate this shift. As long as the personal law anxiety captures the Court’s imagination, the Court’s ability to advance same-sex rights—in this case, or through future litigation—while important, will be limited in its reach. ?

(Views expressed are personal)

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Gauri Pillai is an assistant professor of law at NLSIU, Bengaluru