The Supreme Court judgment rejecting the right of same-sex couples to marry speaks of there not existing a constitutional right to marry, of the need for judicial discipline and the idea that the judiciary is not the correct forum to accommodate polyvocality in social issues. Vaguely intelligible obfuscation amounting to no more than the intellectualisation of the obscene, the rationalisation of the indefensible.This case, in fact, was much simpler than all these justifications might lead the reader to think.It was not necessary for the court to recognise a constitutional right to marry. The right to state-sanctioned marriage has already been granted by the same legislature the court otherwise seems comfortable deferring to, granted under the secular regime that is the Special Marriage Act. The primary issue before the court, by its own determination, was more limited – under that secular regime, once the right to marry is recognised, is it permissible for it to be extended to heterosexual couples but not to homosexual couples?The question, then, was not whether de novo a same-sex couple can claim that the state must recognise their right to marry. Instead, the right of same-sex couples to marry was being asserted in the context of the state choosing to recognise some marriages and not others; of privileging some intimacies and not others; of saying some people can make end-of-life decisions for those they love and not others. The court was not to answer whether the Constitution granted a right to marry; it was to answer whether the Constitution permitted such a right to be granted selectively. The court was not asked to legislate and create an institution where none existed; it was asked to ensure that access to institutions that the legislature has already recognised was non-discriminatory.Also read: Two Steps Forward, Three Steps Back: Supreme Court Verdict on Marriage EqualityIn this fundamental task, the court has failed miserably.The court’s fallacy is perhaps best demonstrated by examining an analogy the majority opinion uses – it reasons that just because there exists a right to movement does not entitle a petitioner to approach the court and seek the construction of a specific network of roads. The analogy captures the very core of the court’s reasoning – the court, apparently, cannot by judicial diktat create laws or frameworks where none exist. That may well be the case. However, it seems to elude the court that a road has, in fact, already been constructed here; it needed only to declare that no citizens could then be denied access to it.Equally regrettable is the court’s hand-wringing about how polyvocality cannot be accommodated in a judicial setting, and consequently the court is an inappropriate forum for making decisions about complex social issues like same-sex marriage. Undoubtedly, same-sex marriage is an issue which divides opinion in the socio-political realities of India. Undoubtedly, it is desirable that consensus on this issue be gradually built on the ground so that society’s acceptance of evolving norms is deepened. Undoubtedly, the executive and legislature are better-placed than the judiciary to build and assess that consensus.None of this entitles the court to hold an individual’s rights hostage to the building of that consensus. Consensus-building matters because it enables a deeper percolation of constitutional norms, not because public opinion exists outside of and beyond constitutional norms. State discrimination against a minority can never be recognised by majority fiat. In the face of conflicting opinions about an individual’s constitutional rights (or, worse, unanimity about trampling on them), the role of the court is to stand up for that individual. It cannot and must not be to relegate that individual’s rights to the realm of policy debate simply because many others differ about the nature of those rights, and by so relegating them to the realm of policy debate concede the field utterly to the majoritarian impulses of the legislature. Polyvocality matters when debating the finer points of where public money should best be spent; it does not matter while recognising that the state is denying a group of individuals their fundamental right to equality.This judgement does not represent judicial restraint. It represents judicial abdication.Kaustubh Chaturvedi is an advocate practising before various fora in Delhi. He’s an alumnus of the National Law School of India University, and can be contacted on kaustubhchaturvedi@outlook.com.
