Discrimination, Remedies and the Same Sex Marriage Case

Introduction

*Samriddh Sharma & Anay Mehrotra

The same-sex marriage case (Supriyo @ Supriya Chakraborty v. Union of India) stands out strangely because of the position taken on discrimination and remedies. Justice Chandrachud’s treatment of discrimination is vague and hastily done. He observes his inability to venture into the discrimination question because of the court’s limitations to grant remedies. It is indeed an unconvincing position to take, and we shall come to it. On the other hand, Justice Bhat (writing for himself and Justice Kohli) did not hold the Special Marriage Act [“SMA”] to be discriminatory. He explains that the objective of SMA was to enable inter-faith heterosexual marriage and thus cannot be held to be under-inclusive by not providing for non-heterosexual marriages. Justice Narasimha agreed with Justice Bhat’s conclusion and even accorded his own reasons in addition. Only Justice Kaul stated that SMA violated Article 14 of the Indian Constitution. However, he also did not provide for any remedies, citing institutional incapacity. Two factors can be culled out to be at play here: institutional limitation and indirect discrimination.

Crucially, Justice Bhat, writing in the same vein, however, did find the discriminatory impact on non-heterosexuals resulting from the lack of legal recognition for their marriages. He emphasised that social acceptance is a crucial facet of a marital relationship. He goes on to point out that even if society and family reject the (heterosexual) marriage, the legal recognition of their relationships “afford(s) protection” and “extend(s) benefits” to them. Importantly, he admits the hardships suffered by non-heterosexuals by highlighting that these very benefits arising out of the legal recognition elude them. An alternate hermeneutical analysis of this passage might suggest that he even recognizes two main harms faced by non-heterosexuals: the deprivation of benefits resulting from the lack of legal recognition for their marriages and societal ostracism. The former benefits can be of various kinds, like those commonly found for couples (and families) in healthcare insurance, taxation, etc. Effectively, a recognition of both these harms would allow for various forms of remedies, providing a wider array of solutions to address the hardships faced by non-heterosexual couples. 

Nonetheless, it is amply clear that Justice Bhat acknowledges at least one form of disparate impact on the group. But unfortunately, he provides no remedy to safeguard against it, citing ‘Separation of Power’ between the legislature and judiciary. In fact, other judges also seem to point out the separation of power as their inability to grant remedies. CJI Chandrachud accurately captures this position. He says that recognising a fundamental right to marriage would create a “corresponding positive obligation” on the State to establish the institution. The court cannot direct or force the government to do this.  Effectively, the court primarily seems to accord this to a constitutional limitation and not to the facts at hand, making judicial intervention infeasible. I attempt to demonstrate that this reasoning by the court is incorrect. In part II, we zoom out, and with a broad brush, I attempt to lay down indirect discrimination jurisprudence as remedy-oriented. In Part III, building on this fabric, I engage with the separation of power justification employed to deny remedy and attempt to demonstrate how it is deeply erroneous and evasive.

Indirect Discrimination as Remedy-Oriented

Justice Bhat located the prohibition against indirect discrimination in Article 15 of the Constitution. Also, considering the fact that he considered the impact discriminatory and not the classification itself, brings it within the jurisprudential tradition of indirect discrimination under Article 15. Article 15(1) states, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” As Dhruva Gandhi has pointed out, a plain reading of the text suggests that it is in the nature of absolute prohibition with respect to discrimination. The only exceptions carved out in this provision, simply speaking, are those which allow for reservation and similar protective laws by the state. Thus, from a textualist reading, in the absence of enumerated justifications and based on the nature of the text, indirect discrimination cannot be justified. 

This aspect is critical because of two reasons. One, the jurisprudence of courts also seems to suggest that indirect discrimination is not justifiable in India. In fact, most jurisdictions do not provide for a blank justification of indirect discrimination. In the United Kingdom, by default, indirect discrimination is justified. In India, the judiciary does not consider the default status of an indirectly discriminatory practice as justified. Advancing resolutely, it has strongly reiterated and taken upon itself the duty to provide for remedies which not only prevent discrimination but also address structural inequities. Two, indirect discrimination does not place importance on the actor. Thus, in theory, there would arise no instance where the actor is called upon to provide justification for the act or explain its choice architecture. Consequently, the judiciary again focuses on remedies. 

Indian jurisprudence on indirect discrimination is a product of collapsing indirect discrimination and structural discrimination. Courts have located indirect discrimination often as a product of societal structures and even stated that systematic discrimination can be patterns of difficult-to-discern societal practices. Lt. Col. Nitisha & Ors. v. Union of India (¶ 72) held that if discrimination is systemic, the constitutional guarantee of non-discrimination imposes duties on the state. It unambiguously observed that this compels state action. Furthermore, the court went on to lay down crucial duties for itself, which ameliorate structural limitations against the victims. It said: 

“The duty of constitutional courts, when confronted with such a scheme of things, would not just be to strike down the discriminatory practices and compensate for the harm hitherto arising out of them; but also structure adequate reliefs and remedies that facilitate social redistribution by providing for positive entitlements that aim to negate the scope of future harm.” (emphasis supplied) (¶ 73)

Thus, it becomes amply clear that the jurisprudence on indirect discrimination in India is heavily oriented towards remedies because of the structural and deeply pervasive nature of indirect discrimination. 

Separation of Powers as Evasive and Erroneous Reasoning

The Supreme Court, by not providing remedies to aid this discrimination, has taken a position contrary to the existing jurisprudence and its own robust and recent positions. Justice Bhat cited the Separation of Powers as the cause which prevented them from providing a remedy. I argue that this reasoning does not hold water based on two grounds. First, it is incorrect in constitutional theory. Second, it mischaracterizes the relationship between rights and remedies. 

I. Troublesome Constitutional Theory

The Bench in Supriyo did not trace their limitation with respect to the separation of power from any text, be it a constitution or a statute. They did not even elucidate the contents of the separation of power based on case laws, which hinders them here. Thus, this reasoning is purely mystically theoretical and not aided or backed up by any text. To begin with, there is little evidence to be persuaded that there is some “deep grammar” of constitutionalism, which blanket bars remedies from being granted when hindered by separation of power. In fact, constitutionalism accommodates just the opposite. The inner logic of rights lends credence to the fact that rights are safeguarded from state interference. The state does not give society rights; instead, the constitution does. Constitutions raise certain rights to the level of fundamental rights, and they become a grundnorm. States can give statutory rights, as a constitutionally delegated body, in the furtherance of the constitution and not contrary to it. Civil and political rights effectively are safeguards against state interference. 

Here, the judges have managed to mischaracterize this by employing two justifications. One, the right to marry is a historical (pre-state) right rooted in tradition and religion. Two, the state creates the secular institution of marriage under the SMA, an exception. Thus, if the state does not grant the institution of marriage, the courts cannot direct the state to do so. However, many socially administered institutions are pre-state, for example, the caste system, prohibition on remarriage of widows, etc. The Constitution has transformative potential because it enables citizens to seek equality in a deeply unequal and autocratic social system which existed pre-state. Overall, this judicial fiction of historical entity and secular exception is a brand-new crafted fiction, which has no roots in precedents or constitutional theory. 

II. Mischaracterisation of the Relationship Between Anti-discrimination and Remedies

Justice Chandrachud had stated his inability to venture into rights because of his inability to grant a remedy. He states, “However, in this case, an exercise to determine whether the SMA is unconstitutional because of under-inclusivity would be futile because of the limitations of this Court’s power to grant a remedy.” (¶ 208) This inverts the relationship between rights and remedies and places the cart before the horse. 

Nitisha states that if the state denies reasonable accommodation for indirect discrimination, it has to be based on the proportionality standard. This, crucially, is at the remedy stage, and not the stage of indirect discrimination. To arrive at this conclusion sans the proportionality test is erroneous and sub-optimal. For, the tailoring of remedies can only be ascertained during the proportionality test. Justice Chandrachud’s line of reasoning can potentially set off a pernicious practice, for abusive courts may refuse even to recognise discrimination, citing vague and unarticulated inabilities to provide remedy.

Justice Bhat gives an example which says that if there is no law for construction of roads, the court cannot direct the government to do it. This illustration by the court is misleading. In absence of any specific statutory law, actions like giving instructions for laying down roads are aspects of socio-economic rights and not civil rights. Constitutional law in India, and the world generally places lesser judicial enforcement and recognition of socio-economic rights due to unfortunate path-dependencies. Madhav Khosla has argued how socio-economic rights have been reduced to ‘conditional’ and are half-hearted and barely enforceable. Thus, this comparison is not only weak and misleading but also mischaracterizes the sensitive nature of the rights in question here. Justice Chandrachud also responds to this statement by pointing out to a specific case law wherein the court indeed instructed to make roads. 

Even if we were to accept Justice Bhat’s opinion, considering that he does recognise a disparate impact, the standards for indirect discrimination necessitate remedies—as previously covered in this blog. Thus, the court ultimately suffocates remedies by inverting the relationship between rights and them. 

Conclusion

The Supreme Court's reasoning in the same-sex marriage case reveals significant flaws in its approach to discrimination and remedies. By citing separation of powers and institutional limitations, the Court has effectively inverted the relationship between rights and remedies, contradicting established indirect discrimination jurisprudence. This stance not only mischaracterizes the nature of constitutional rights but also undermines the Court's duty to provide remedies for recognized disparate impacts. The judgement's reliance on vague notions of institutional incapacity and historical traditions creates a dangerous precedent that could hinder future anti-discrimination efforts. Ultimately, the Court's failure to provide meaningful remedies, despite acknowledging discriminatory impacts, represents a missed opportunity to uphold constitutional principles and address structural inequities faced by non-heterosexual couples.

*Samriddh Sharma & Anay Mehrotra are fourth-year law students at West Bengal National University of Juridical Sciences, Kolkata.

The views expressed above are the author's alone and do not represent the beliefs of Pith & Substance: The CCAL Blog.