Marriage Equality: Centre's View of the Constitution Is Flawed

In his 2018 book ‘A People’s Constitution: The Everyday Life of Law In The Indian Republic’, Rohit De makes a strong case for the centrality of India’s Constitution in the lives of its citizenry.

As rights-bearing individuals, De argues, the people of India took this ‘public resource’ in the form of a Constitution to the Supreme Court, not for adjudication of some amorphous moral claim or State-endowed privileges, but for enforcement of indisputable and clearly coded guarantees of equality, freedom, and dignity in everyday life.  

Earlier this week, as the Solicitor General (SG) of India Tushar Mehta submitted before the Supreme Court that it was not the prerogative of the judiciary to grant marriage equality, the central government’s line of argument betrayed an acute ignorance of the manner in which constitutional jurisprudence has evolved in India.

HERE'S HOW:

From the very inception of this litigation, the Centre has maintained that the demand for marriage equality does not enjoy the ‘popular will’.

As per the written submissions of the Centre, on account of the doctrine of separation of powers, the question of marriage equality should be decided by the elected representatives – who enjoy the mandate of the people of India – or in other words, reflect the  ‘popular will’ in their respective legislatures.

While this appears to be a legitimate claim, it does not paint an accurate picture of our constitutional scheme, where judicial review by the constitutional courts serves as a formidable limitation on the law-making power of the legislature.

The ‘Transformative’ Nature of India’s Constitution  

It needs no greater emphasis that India’s Constitution is a living document, that is to say, it takes into account the social realities of India and accommodates the lived experiences of its people.

The framers did not think of the Constitution as an exhaustive, self-contained bill of rights; rather, it was devised as an enabling framework which could be interpreted and re-interpreted to balance competing interests.

Making such a framework was not an easy task, as an arduous burden had to be discharged: a large number of marginalised interest groups, with diverse sets of grievances and demands, had to be given a stake in governance.

Naturally, it was impossible to create an omnibus document which could account for all such demands. The Constitution was, therefore, formulated as a fluid document, the contours of which could be expanded to fit in the hitherto excluded groups.  

To what event can this ‘transformative’ nature of India’s Constitution be attributed, one may ask.

The answer lies in the origin of the document.

The Indian Constitution was drafted in the wake of a nationalist struggle for independence. The subjects of an imperial power were adopting self-rule, and were transforming into citizens of a welfare state. The prevailing ideal of independent India was not the pre-eminence of the State – it was the superiority of the rights of its citizens.

More importantly, the overarching thrust of this canopy of rights was creation of a ‘representative’ democracy in the true sense of the term, where even the smallest of minority occupy a seat at the table.

Arguably, in the last 70 years or so, the Constitution has continued to be ‘transformative’. To borrow from Advocate Gautam Bhatia’s ‘The Transformative Constitution: A Radical Biography in Nine Acts’, it has transformed not only the political relationship between the State and the individual, but also the social relationships upon which the law and polity operate.

This is not only to the credit of the Constitution, but also its final arbiter: the Supreme Court of India.  

A Court of Social Reforms  

Quite like the Supreme Court of the Unites States of America, the Supreme Court of India also enjoys the power of ‘judicial review’. This means that the Supreme Court can call into question – and invalidate – any State action which falls foul of fundamental rights, or any other part of the Constitution.

However...

This has often happened by way of a liberal reading of the fundamental rights guaranteed in the Constitution.

In Maneka Gandhi v. Union of India, the Supreme Court ruled that Article 14 of the Constitution not only prohibits State-sponsored discrimination, but also protects against any arbitrariness in executive action.

Similarly, Article 21– which guarantees a fundamental right to life and personal liberty – has been expansively interpreted to include the facets of dignity, autonomy, and privacy.

Relying upon these guarantees, the Supreme Court of India singlehandedly ushered in an environmental revolution in the 1980s, when right to clean and safe environment was upheld as an integral part of Article 21.

During this time, the court also propounded and developed the ‘public interest litigation’ (PIL) regime, under which one could approach the Court for enforcement of fundamental rights of citizens who, due to reasons of access, poverty or lack of information, could not approach the Court themselves.

Using the PIL jurisdiction, the Supreme Court struck down many ills: the scourge of bonded labour, release of prisoners incarcerated since eternity, and the right to free legal aid, to name a few.  

Horizontal Rights Under the Constitution 

A striking feature of the Court’s approach towards interpretation of fundamental rights has been its insistence on the ‘positive obligations’ of the State, and not a mere promise to not violate the fundamental rights.

This means that the State, apart from not discriminating against a citizen through its own actions, has to further ensure that such citizen does not face discrimination from his fellow citizens.

In a number of cases, the Supreme Court has applied this aspect of ‘horizontality’ of rights to dealings between private parties, in scenarios where there is power imbalance or where one private party is in a position to exploit the other. 

In Vishaka vs State of Rajasthan, the Supreme Court framed the famous guidelines against sexual harassment, since a legislative void attributable to the State exposed the petitioner to violation at the hands of private actors.  

Given that the Court has already recognised the fundamental right to autonomy and privacy of homosexual couples and persons who fall outside the male/female gender binary and has rendered such persons ‘equal’ under the eyes of law, there is no logical reason why their right to marriage should not be recognised under law.

While reconciliation of personal laws to accommodate marriages other than a heterosexual union may be a legislative task, it cannot prevent an enabling declaration of marriage equality from the Supreme Court, one which will place the personal laws within the peripheries of Constitution as understood today.   

Marriage Equality and Constitutional Morality  

The Indian Constitution does not operate on the whims of public morality. Be that as it may, it would be naive to suggest that unions in India have been visualised through heteronormative lenses alone.

The modern understanding of heterosexuality and marriages embedded under Indian law is only a recent exercise in normative purity, having emerged as a pushback against the colonial exoticisation of diverse sexual practices in India. 

Even so, an overwhelming public sentiment against marriage equality cannot allow the Court to leave the question open for legislative deliberation.

The Indian Constitution operates on, what is commonly known as ‘constitutional morality’, which is different from morality as understood in its ordinary sense.

While the beliefs of the majority may be construed as ‘moral’, what does not pass the test of equality and dignity will not be moral per the constitution. For this reason, even if 99.9% of the people of India are opposed to the idea of marriage equality – as has been claimed by the Bar Council of India – it cannot deter the Supreme Court from upholding the rights of sexual minorities.

The Constitution was not drafted to echo the views of the majority; it was intended to protect one citizen against the tyranny of the majority. 

(Harshit Anand is an advocate practising in Delhi. He tweets at @7h_anand and can be reached at [e-mail]. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses, nor is responsible for them.)