Marriage Equality: Govt Says Only Parliament Can Change Laws. Here Are 5 Times The Supreme Court Did

28 Apr 2023 12 min read  Share

Changing laws is Parliament's jurisdiction, not the court’s, which cannot become a ‘super legislature’, the union government argues as the Supreme Court of India seems to agree, as it hears 20 petitions seeking recognition of same-sex marriage. When a legal vacuum is evident or a fundamental right violated, the Supreme Court can and has stepped in to modify laws, push for new ones or created new procedures. We list five such interventions related to the selection of election commissioners, sexual harassment, triple talaq, privacy and deforestation.

Drawing from Stick News on The Daily English Show./ WIKIMEDIA, CREATIVE COMMONS

New Delhi: “The subject your lordships are dealing with is the creation of a socio-legal relationship of marriage which is the domain of the competent legislature.” 

That was the argument solicitor general Tushar Mehta made on behalf of the Bharatiya Janata Party (BJP) government of Prime Minister Narendra Modi to the Supreme Court, when it began hearing the case on legalising same-sex marriage on 18 April 2023. 

The court, Mehta said on 26 April, did not have the “wherewithal” to decide who was male or female in a same-sex marriage that could involve 72 categories of sexual orientation or the “competence” to create a regulatory framework that covered 160 provisions across various laws.

It was only on 2 March 2023, in a case related to the appointment of election commissioners, that the Supreme Court said that “the theory that the courts cannot or do not make laws is a myth which has been exploded a long while ago”.

“Will the court become a super legislature to amend all these provisions with a constitutional declaration and by reading ‘person’ for ‘man and woman?’” said Mehta. “Only Parliament can decide on this after a debate in civil society, the nation and in legislature.”

A day later, Chief Justice D Y Chandrachud appeared to agree. "We understand the limitations of this court," he said.

Yet, our analysis of five Supreme Court judgements over the past 30 years revealed that the court has changed or enabled a change in law when a legal vacuum was evident or a fundamental right violated, mostly via guidelines or installing a new system as an interim measure, pushing Parliament to frame a new law. 

That is what some thought might happen in the same-sex marriage case, despite the government's arguments that the Supreme Court has no jurisdiction.

“The courts cannot either create or recognize marriage either by way of a judicial interpretation or striking down or reading down the existing legislative framework for marriages,” said the union government affidavit, filed in response to 20 petitions seeking recognition of same-sex marriage. 

The petitioners challenged provisions of the Hindu Marriage Act, 1955, the Foreign Marriage Act, 1969, and the Special Marriage Act (SMA), 1954, all of which do not recognise same-sex marriages.

The union government opposed the petitions on the grounds that marriage is “an exclusively heterogenous institution” and that those seeking marriage equality in India “merely represent urban elitist views for the purpose of social acceptance”.

The government also claimed that a “vast majority of countries” where same-sex marriage is recognised have done so via legislation.

Indeed, 23 of the 34 countries where same-sex marriage is legal have done so via legislation, including Switzerland, France and Australia. However, 10 countries, including the United States of America and Brazil, have done so through court judgements.

Three countries ensured marriage equality in 2022, and this is how they did it:

-In September 2022, Cuba, where homosexuals were once persecuted, legalised same-sex marriage after two-thirds of the population approved it in a national referendum. A100-page Family Code, supported by the government, went through more than two dozen drafts and hours of debate in community-level meetings, the BBC reported.

-In July 2022, the Constitutional Court of Slovenia, the European country's highest, ruled that the ban on same-sex marriages violated the constitution. It provided the Slovenian parliament six months to introduce marriage equality, which the government did in October.

-In tiny Andorra in Europe, the legislature, which has only one house, unanimously approved marriage equality.

The Modi government cited a 29 March 2023 order of the Supreme Court in Ashwini Kumar Upadhyay vs Union of India, a petition that sought gender-neutral and religion-neutral laws on divorce, adoption and maintenance.

The Supreme Court in the Ashwini Kumar case said such laws were legislative domain, and it could not order Parliament to frame laws.

The marriage equality issue, said experts, does not follow this argument because the court has refused to interpret religious personal laws, something that it would have had to go into in the Ashwini Kumar case. In the same-sex marriage case, it is likely to provide an interpretation of the non-denominational 69-year-old SMA only.

'Court Can Interpret Laws'

“I am not surprised by the government’s position,” said Faizan Mustafa, PhD, a lawyer and former vice chancellor of the NALSAR University of Law, Hyderabad.

“The government, which is a reflection of the society, is representing social morality. Indian society being religious, traditional and feudal is not ready for the legal recognition of same-sex marriage,” said Mustafa. “So the government in a way is right, because society is not there yet.”

Mustafa said this argument did not restrict the court from granting legal recognition to same-sex marriage.

“If a court is committed to civil liberties, it may go ahead, but I feel that the court in this case will merely recognize it (same-sex marriage) under the Special Marriage Act (SMA),” said Mustafa. “It will not go into personal laws. That itself would be a big victory.”

Mami Swaroop, an advocate who practises in the Madras High Court, explained what the courts could do when a law was “underinclusive”, such as the SMA of 1954 and personal laws on marriage rights for lesbian, gay, bisexual, transexual or queer couples.

“Laws can offend the fundamental right to equality clause in Article 14 by either granting a benefit to a class of people that do not deserve it, or by granting a benefit to only some types of people, but denying to other types of people,” Swaroop said.

“In the first category, courts only need to strike down the law to ensure everyone is treated equally,” said Swaroop. “But in the second category of cases, court has to positively grant a benefit to a class of persons.”

This is where the debate becomes legally contentious.

Swaroop said there were “some stray observations of the Supreme Court in some matters where they have said they cannot do this,” but, he added,  “there is no positive judgment that says it cannot be done”.

Swaroop said the government was trying to argue on these lines—that the courts cannot correct a law that is underinclusive.

On the government’s objection that the court cannot “rewrite” laws, Mustafa argued that the court should not “legislate laws”.

“But when they are interpreting any provision, as in this case, if they are interpreting Article 21 [the right to protection of life and personal liberty], in that interpretation, they have the power to widen the ambit of the right,” said Mustafa.

“They (the Supreme Court) have quite a scope (sic) to give creative, innovative, liberal interpretations,” said Mustafa.

Here are five times when the Supreme Court widened such interpretations, expanding the ambit of existing laws or procedures or pushed the government to pass new ones.

1 Appointment of Election Commissioners 

Anoop Baranwal vs Union of India

Judgement by: Justices K M Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and C T Ravikumar

Date of Judgement: 2 March 2023

A five-judge constitution bench headed by Justice K M Joseph adjudicated on four petitions, first filed in January 2015, seeking reform in the process of appointment of members of the Election Commission of India.

On 22 November 2022, much like the same-sex issue, the union government pleaded with the court to follow a “strict separation of power” and leave the matter to “parliamentary debate”.

However, the Supreme Court, in a judgement three months later, put in place a new procedure for appointing members to the election commission. This, the court said, would be in place “until a law in this regard is made by the Parliament”.

The petitioners had argued that a lack of a law governing the appointment process—as envisaged by Article 324(2) of the Indian Constitution — made it a process entirely driven by the executive and affected the independence of the Election Commission, whose commissioners are meant to be independent of the government. That independence has lately been called into question, with election commissioners largely from the ranks of the bureaucracy, in particular those familiar to the ruling party.

The petitioners asked that election commissioners be appointed through a transparent process “devoid of arbitrariness”.

Agreeing with this, and rejecting the union’s argument that the court “cannot decide whether to enact a law on behalf of the Parliament”, the constitution bench decided to set up a committee of the Chief Justice of India, the Prime Minister, and the leader of Opposition in the Lok Sabha, or leader of the largest opposition party in the Lok Sabha, to appoint election commissioners.

The judgement also noted that “there is no strict demarcation or separation of powers in India” and that “the theory that the courts cannot or do not make laws is a myth which has been (sic) exploded a long while ago”.

2 Triple Talaq

Shayara Bano vs Union of India & Others

Judgement by: Chief Justice J S Khehar and Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer

Date of Judgement: 22 August 2017

In August 2017, a five-judge constitution bench headed by Chief Justice J S Khehar adjudicated a petition challenging the constitutionality of three Islamic religious practices—talaq-e-biddat, a practice that allowed a Muslim man to instantly divorce his wife without her consent by saying the word talaq thrice; polygamy, a practice allowing Muslim men to marry more than one woman at a time; and nikah-halala, a set of rules for a husband and wife wanting to re-marry for a third time.

Though the union government supported the petitioners, the All India Muslim Personal Law Board objected, arguing that the Supreme Court could not examine constitutional validity of marriage, divorce and maintenance in Muslim personal law. 

The court disagreed. It delivered a 3:2 split judgement, with the majority holding talaq-e-biddat to be “manifestly arbitrary” and therefore unconstitutional. Challenges to nikah-halala and polygamy would be heard later, the bench had said.

The judgement also asked the union government to evolve a law governing the practice. Two years later, Parliament passed the Muslim Women (Protection of Rights on Marriage) Act, 2019, criminalising talaq-e-biddat and other forms of instant talaq with a fine and punishment of imprisonment up to three years.

3 Vishaka guidelines

Vishaka & Others vs State Of Rajasthan & Others

Judgement by: Chief Justice J S Verma and Justices Sujata V Manohar and B N Kripal 

Date of Judgement: 13 August 1997

In 1992, the Supreme Court was asked to address the issue of unsafe workplace environments for women. “The absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all workplaces,” the petition said.

The union government did not object to the petitions and assisted the court in bringing and structuring guidelines to curb sexual harassment at the workplace.

With the cooperation of all parties, a three-judge bench headed by Chief Justice J S Verma, on 13 August 1997, delivered a judgement establishing the “Vishaka guidelines” or “guidelines and norms” providing protection to women from sexual harassment in workplaces.

The Vishaka case led to parliamentary assent for the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

The case is widely regarded as the case that “changed the judicial landscape of the country” because the court stepped in to fill a legislative vacuum—something it resisted until then.

Though the court conceded that the executive and legislature were primarily responsible for the safety and dignity of women in the workplace, it said that when sexual harassment violating fundamental rights of women are brought before the Supreme Court, “an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum”.

Even in the same-sex marriage issue, Chief Justice Chandrachud observed that the Parliament has the power to interfere with the canvas covered by these petitions,”  and commented “The test really is how far can the courts go?”

In response, senior advocate Menaka Guruswamy, for the petitioners, argued that the court need not wait for the Parliament to address a vacuum. The provisions of the SMA, in not addressing same-sex marriage, she said, were unconstitutional. 

The Supreme Court, said Guruswamy, could act as the “north star”.

4 Right To Privacy

Justice K S Puttuswamy (Retd.) vs Union of India

Judgement by: Chief Justice J S Khehar, and Justices J Chelameswar, S A Bobde, R K Agrawal, Rohinton Fali Nariman, A M Sapre, D Y Chandrachud, Sanjay Kishan Kaul, and S Abdul Nazeer

Date of Judgement: 24 August 2017

A nine-judge constitution bench of the Supreme Court was asked to adjudicate whether privacy was a constitutionally protected value.

The union government objected to the idea of privacy being recognised as a fundamental right. “Something as amorphous as privacy should not be considered a fundamental right,” said K K Venugopal, the then attorney general of India.

Rejecting this argument, the nine-judge bench in six separate but concurring judgements held the right to privacy to be a part of fundamental rights under the Indian constitution and said India needed a “robust” data protection regime.

“Constitutional interpretation is but a process in achieving justice, liberty and dignity to every citizen,” the majority judgement said.

The court asked the union government to legislate on the issue and noted that “we commend to the Union Government the need to examine and put into place a robust regime for data protection”.

While the petition was being heard, the government appointed a committee of experts to evolve a data protection framework.

The court’s judgement and the subsequent efforts by the government culminated in the present form of data protection framework called The Digital Personal Data Protection Bill, 2022. 

On 18 November 2022, the ministry of electronics and information technology released the bill and invited comments from industry stakeholders and the general public.

The bill is expected to be introduced in Parliament this year. If Parliament approves the law, it would place several obligations on companies collecting and processing personal data and provide rights to citizens.

5 Compensatory Afforestation

T N Godavarman Thirumalpad vs Union of India and Others

Judgement by: Ongoing

Date of Judgement: NA

In 1995, one T N Godavarman Thirumalpad petitioned the Supreme Court to protect forests of the Nilgiris from deforestation due to illegal timber operations.

Though the petition related to a specific case of deforestation in the Nilgiris, the court widened the petition’s ambit and began overseeing operations of sawmills, de-reservation of forests, violations of approvals for forest diversion and issues related to compensatory afforestation.

In December 1996, a two-judge bench of Justices J S Verma and B N Kirpal said it “requires a further in-depth hearing to examine all the aspects relating to the National Forest Policy”.

Environmental experts said the court’s intervention, and one of its 2002 orders, led to the Compensatory Afforestation Fund Act, 2016, which provides a legal framework for compensatory afforestation in India, including ensuring that money for this purpose was quickly used.

The case is credited with being “one of the most prominent examples of judicial activism in the sphere of forests and wildlife”.

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(Saurav Das is an investigative journalist and transparency activist.)