The Supreme Court, on Tuesday, October 17, reiterated that the question of notice period under the Special Marriage Act (SMA) 1954, was to be left for the consideration of a “numerically smaller bench”. Pronouncing the judgement on a batch of petitions pertaining to marriage equality, a five-judge Constitution bench refused to grant a gender-neutral reading of SMA or strike down provisions under the Act that were an invasion of privacy. The court said that it could not do so because it amounted to treading into the legislative domain, which was for the elected government to act on.
When petitions seeking recognition of LGBTQIA+ marriages reached the Supreme Court last year, they had challenged the various marriage acts including SMA and the Hindu Marriage Act (HMA). The Court had however decided to hear only those petitions that pertained to SMA.
Under SMA, any couple intending to marry are required to give notice to the district marriage officer of the district where at least one of the couple has lived for at least 30 days. This notice of intended marriage is then put up on the notice boards of the register office where they submit the notice, as well as in their respective hometowns or place of residence, for one month. Within this period, any person can express objection to the union of the couple, in which case an inquiry will be held. It is only after 30 days that the marriage is solemnised by the marriage officer, given that no one raises any objection.
Counsels of petitioners, including senior advocates AM Singhvi and Raju Ramachandran pointed out that the notice requirement does not exist in any other personal laws and contended that the requirement was unconstitutional. While the court observed that the regime was based on patriarchy and it was not the “least intrusive way” to ensure that people don’t enter into void marriages. The court also observed that this will disproportionately affect situations in which one of the spouses belongs to a marginalised community. However, during the course of the hearing, the court observed that it was a matter to be heard by a smaller bench. It did not pass a definitive order on the issue.
While pronouncing the judgement on Tuesday, Chief Justice of India (CJI) DY Chandrachud pointed out that some counsels requested the court to address the ‘notice and objections regime’ in the SMA and said that the court “had not heard arguments on this issue in the present proceedings”.
Justice S Ravindra Bhat too took note of the plea and said that the “court indicated that this was not a question of law that necessitated a five judge-bench ruling, and hence this issue was to be left for consideration by a numerically smaller bench.” However, the court took into consideration the other plea put forth by the petitioners — a gender-neutral reading of the Act that will enable anyone to be married regardless of their gender or sexual orientation.
The CJI said that the provisions of SMA are linked to personal and non-personal laws of succession in a very complex manner such that “the petitioners themselves had to submit lengthy charts on workability, which in effect reworked the structure of the SMA to include non-heterosexual unions.” Listing the workability methods put forth by the petitioners, he observed that if the court finds any provision of SMA as unconstitutional “because it is under-inclusive” and excludes queer couples, there are two ways to deal with it — the court can strike down the provision or follow the workability method submitted by the petitioners.
If the first option is chosen, the CJI said, the purpose of the progressive legislation would be lost. Stating that the Act was intended to enable persons of different religions and castes to marry, he said that if a provision is held void for excluding queer couples, “it would take India back to the pre-independence era” when two persons of different religions and caste were unable to get legal recognition of their marriage. “Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another,” he said.
If the court follows the workability method by making the SMA gender-neutral, it would “in effect be entering into the realm of the legislature”. Stating that the petitioners’ submissions indicate extensive reading of words into several provisions of the SMA and other allied laws, the court said that it was “not equipped to undertake an exercise of such wide amplitude because of its institutional limitations”. “This court would in effect be redrafting the law(s) in the garb of reading words into the provisions. Whether a change should be brought into the legislative regime of the SMA is for the Parliament to determine. Parliament has access to varied sources of information and represents in itself a diversity of viewpoints in the polity. The court in the exercise of the power of judicial review must be careful not to tread into the legislative domain,” it ruled.
Justice Bhat, in his judgement, noted that the “sole intention” of the SMA was to enable marriages between people of different faiths. He also said that gender neutral interpretation of the Act might not be “equitable at times and can result in women being exposed to unintended vulnerability, especially when genuine attempts are made to achieve a balance, in a social order that traditionally was tipped in favour of cis-heterosexual men”.
Justice SK Kaul differed with Justice Bhat that the sole intention of SMA was to enable marriage of heterosexual couples exclusively. Stating that SMA provides a secular framework for solemnisation and registration of marriage, he said, “The stated objective of the SMA was not to regulate marriages on the basis of sexual orientation. Although substantive provisions of the SMA confer benefits only on heterosexual relationships, this does not automatically reflect the object of the statute.”
He also added that excluding non-heterosexual relationships would be “unconstitutional”, he said that the “SMA is violative of Article 14”. However, he stated that there are “multifarious interpretive difficulties” in reading down the SMA to include marriages between non-heterosexual couples. Agreeing that the entitlements devolving from marriage are spread across a proverbial ‘spider’s web’ of legislations and regulations, he said that tinkering with the scope of marriage under the SMA can have a “cascading effect across these disparate laws”.
“The presence of this web of statutes shows that discrimination under the SMA is but one example of a larger, more deeper form of social discrimination against non-heterosexual people that is pervasive and structural in nature. Ordinarily, such an intensive form of discrimination should require keener and more intensive judicial scrutiny. However, due to limited institutional capacity, this court does not possess an adequate form of remedy to address such a violation,” he said. Reading into the Act is beyond the powers of judicial review and the Act cannot be struck down as it is beneficial to heterosexual couples, Justice Kaul said.
Section 4 of the SMA permits marriage between any two individuals, while a sub-section specifically mentions marriage as one between a “male” and a “female”. The petitioners said that this was violative of the fundamental rights of LGBTQIA+ persons and asked for the law to be made gender-neutral, removing restrictions on the grounds of gender and sexual orientations. The petitioners had also wanted a change in the terms used in section 4 of the SMA, so that gender-specific words such as husband, wife, male, and female are replaced with words like spouse and person.
Further, they demanded the removal of the provision that allows any person to object to a marriage during the 30-day period when details of the couple and the marriage notice are pasted on the walls of a register office. Sections 5 (notice of intended marriage), 6 (marriage notice book and publication), 7 (objection to marriage), 8 (procedure on receipt of objection), 9 (powers of marriage officers in respect of inquiries), 10 (procedure on receipt of objection by marriage officer abroad) and 46 (penalty for wrongful action of marriage officer) of the SMA are unconstitutional, they argued. They said that these sections violate Articles 14 and 15 (prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth), as well as Articles 19 (fundamental rights) and 21 (right to life and dignity) of the Constitution.
Read: Explained: Special Marriage Act provisions challenged by the marriage equality petitions