In November 2022, a petition was filed before the Supreme Court of India to allow legal recognition of marriages between same-sex couples under the Special Marriage Act, 1954 (“SMA”). The petitioner in Supriyo @ Supriya Chakraborty v. Union of India (“Supriyo”) has been in a committed relationship for ten years and is living with his partner. When the COVID-19 pandemic hit, the petitioner was forced to rush his partner to the emergency room while suffering from severe COVID himself. After the ordeal passed, they decided to hold a private marriage ceremony among friends and family to celebrate their relationship.
The petition highlights that despite their ceremony and living together akin to married couples, they were denied the legal right to marry. They did not enjoy a host of rights qualified by marriage, like the authority to make critical medical decisions about each other. They did not have the right to adoption, ART, surrogacy, inheritance, maintenance, consortium, or tax, retirement, and employment benefits. Above all, they were denied the social legitimacy that marriage brings.
The right of LGBTQ persons to have sexual relationships was recognized in Navtej Singh Johar v. Union of India. However, the positive right to marry is still denied to queer couples across the country. While the Special Marriage Act does not contain gendered terms or state that a valid marriage can only be between a man and a woman, registration officials across the country have denied registration of LGBTQ marriages. The case in question examines whether the SMA can include queer marriages.
A recent decision in X v. Principal Health Secretary, Health and Family Department, Govt. of NCT of Delhi (“PHS”), can come to aid here. In this case, the petitioner approached the court to allow her to obtain an abortion at 22 weeks. She was in a dire financial situation after her partner, who had initially promised to marry her, backtracked.
According to rules framed under the Medical Termination of Pregnancy Act, 1971 (“MTP”), abortion after 20 weeks is possible on a change of marital status. The High Court denied the petitioner relief by adopting a restrictive view of the MTP rules to include only married women. Consequently, she appealed to the Supreme Court. The issue before the court was whether the MTP rules could be interpreted to include unmarried women, a class of persons not included by a literal reading of the law.
Fundamental Rights
The MTP law aims to guarantee pregnant people access to safe and legal abortions. Here, the court held that unmarried women have the right to equal protection of the law per Article 14 of the Constitution. Moreover, unmarried women have the right to privacy and reproductive autonomy under Article 21. A narrow interpretation that excludes them from the ambit of MTP rights would render the rule “perilously close to unconstitutionality” under Article 14.
Similarly, LGBTQ people have the right to equality, prohibition of discrimination due to sexual orientation, freedom of speech and expression, and life and liberty, as affirmed in K.S. Puttaswamy v. Union of India. Under Article 14 of the Indian Constitution, if a statute creates differentiation between two classes of people to deny benefits to one, the difference should be logical and have a rational connection with the object of the law.
In Pranav Kumar Mishra v. Govt. of NCT of Delhi, the Delhi High Court held that the SMA was enacted to ensure marriage rights to any Indian couple, whether they profess different faiths or prefer a civil marriage. It is a secular law that allows legal marriage of couples who face social ostracization. Respecting the statute’s object, there is no rational basis to deny its rights to LGBTQ couples.
Transformative Constitutionalism
Social realities change constantly. Social reforms can simulate legal reforms and vice versa. In Badshah v. Urmila Badshah Godse, the court held that while interpreting statutes, it should consider the changing needs of society. This principle should inform judges’ discretion to determine the law’s purpose.
In Johar, the court explained that courts and the constitution could play a transformative role in society by remedying historical injustices. In PHS, it said that the judiciary must engender such transformation by interpreting the Constitution in view of changing times in consonance with their object.
On application in the PHS verdict, the court decided to extend MTP benefits to unmarried women to remedy the injustice and advance the object of the law. As ancillary observations, it noted that family relationships might be queer partnerships too. There is a need to legally recognize these non-traditional families to allow them the rights of beneficial legislation.
LGBTQ persons in India have historically been denied equal rights before the law. Their relationships were decriminalized only recently, in 2018. The community still faces hostility and oppression from Indian puritans. The court would advance its constitutional mandate by extending equal marriage rights to them and advance the object of the SMA.
Beneficial Construction
A fundamental rule of interpretation is that the court cannot limit itself to the literal, grammatical interpretation of a statute. Instead, it must look at an act’s object and the legislature’s intent. In KH Nazar v. Mathew K Jacob, the court held that beneficial legislation must be interpreted with a liberal, purpose-oriented approach.
Under the doctrine of beneficial construction, its liberal interpretation is possible if the law confers certain benefits. The MTP Act aimed to grant people safe and accessible abortions. It was held to be a beneficial legislation, thus deserving a broad and purposive interpretation that advances its object. The court noted that “change of marital status” must not be limited to divorce and widowhood. It protected the plaintiff’s fundamental rights, allowing her an abortion. In doing this, the court interpreted the rules to include a category not initially envisaged as its beneficiary.
In context of the Supriyo case, the SMA confers marriage benefits to all citizens, regardless of religion. Because it is a beneficial statute, the court may bring out the broadest interpretation of the language without circumventing its direct terminology.
The SMA consistently refers to the prospective couple as “parties,” instead of using gendered terms. Section 4 of the SMA states that “a marriage between any two persons may be solemnised under this Act subject to fulfilment of prescribed conditions.” Section 4(c), states one of the conditions of marriage is that “the male” must be at least 21 and “the female,” at least 18. While often using terms like “husband” and “wife,” other provisions do not pose a problem in including same-sex couples.
If any doubt on the terms employed in legislation arises, the court should look at its proper legal meaning. This involves considering the words used in light of the law’s object. The legislative intent of the SMA was to provide marriage rights to Indian citizens, irrespective of social factors. The court can interpret the statute broadly, in line with its object of equal marriage rights, to guarantee its benefits to all.
Liberal Interpretation to Save Constitutionality
It is settled law that if the literal interpretation of a statute violates fundamental rights but another construction is possible, the court can depart from the literal interpretation to save it.
The PHS case upheld this principle. A literal reading of the MTP Rules that includes only married women would violate constitutional guarantees and the right to equal protection of laws under Article 14. Instead, the court chose to depart from the literal reading to interpret the MTP Rules in a manner that did not violate the petitioner’s fundamental rights.
In Supriyo, denial of marriage equality to LGBTQ people violates Article 14, Article 15, Article 19, and Article 21, rendering any offending statute ultra vires and unconstitutional under Article 13. The SMA does not explicitly bar the conferment of such rights to LGBTQ persons. It may easily be interpreted to include all couples. Thus, the court is bound to prefer a broad construction of the SMA to save it from unconstitutionality.
Assuming that the court holds Section 4(c) of the SMA as evidence that the only permissible interpretation of the SMA is to include marriages between men and women, the courts can strike down Section 4(c) as the offending clause. Other provisions may still be interpreted to apply to all, irrespective of gender, and allow the petitioner’s prayers to succeed.
Conclusion
Other jurisdictions where courts have legalized marriage equality were criticized for violating constitutional limits and separation of powers. Critics argue that the judiciary cannot make laws, only interpret them or strike them down. The present article is conscious of the limits of judicial powers and gives the judiciary a way out of this conundrum. It allows the court to give effect to minority rights with its existing powers.
In Johar, the Supreme Court spoke in one voice to say that as a constitutional guardian of fundamental rights, it has a duty to ensure that the views of a majority do not trample over the rights of a minority. Allowing the legislature, controlled by the views of a majority-dominated electorate, to deny marriage rights to the LGBTQ minority would be failing this constitutional mandate. A sea of legal reform began by striking down Section 377 to remove a negative restriction on queer people. The Supriyo case has the potential to expedite this reform by guaranteeing positive rights of equal protection of the law.
Akshita Rohatgi and Lavanya Gupta are law students currently studying in Delhi, India.
Suggested citation: Akshita Rohatgi and Lavanya Gupta, Constructing India’s Special Marriage Act to include LGBTQ Couples, JURIST – Student Commentary, February 17, 2023, https://www.jurist.org/commentary/2023/02/rohatgi-gupta-special-marriage-act-lgbtq/.
This article was prepared for publication by Hayley Behal, JURIST Commentary Co-Managing Editor. Please direct any questions or comments to her at commentary@jurist.org
