However, the Supreme Court has historically tackled equally intricate legal conundrums surrounding rights and competing interests in a society as diverse as ours. Ruminants of personal law coupled with traditional religious notions of propriety and customs have often presented before the apex court dilemmas that it could deftly resolve with the aid of constitutional mandates guaranteeing equality before law and forbidding discrimination based on gender, status, caste or creed.
The Constitution, since its inception, has acted as a guiding light in harmonising competing interests and emerged as a saviour to repel attacks on free exercise of rights jeopardised through a complex web of laws, customs and societal norms that tend to submerge individuality within the strictures of marriage, family, and community.
Social institutions and constitutional rights
Eight years before Independence, Rani Rajwade, a woman activist and a social reformer, wrote in a report titled ‘Women’s Role in a Planned Economy’, “the individual will be free to choose and marriage shall not be a condition precedent to the enjoyment of full and equal civic status, social rights and economic privileges”.
Ten years later, the Constitution of India evidently transcended Rajwade’s views as its Preamble promised to create a secular State based on the principle of equality and non-discrimination, striking a balance between the rights of the individuals and the duty, and commitment of the State to establish an egalitarian social order.
During the constituent assembly debates, Dr KM Munshi pressed that it is time for the country to divorce religion from personal law, from what may be called social relations, or from the rights of parties as regards inheritance or succession. “We are in a stage where we must unify and consolidate the nation by every means without interfering with religious practices…Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation,” said the political thinker, constitutional expert and one of the framers of the Indian Constitution.
The supremacy and the role of the Constitution in guaranteeing justice, liberty, equality and fraternity to all its people was summed up brilliantly by justice Vivian Bose, who said: “The Constitution is not for the exclusive benefit of governments and states… it also exists for the common man, for the poor and the humble…for the butcher, the baker and the candlestick maker.”
Through a bundle of judgments, the top court has underlined the spirit of the Indian Constitution and the judiciary’s role in securing to all people aspirations enshrined under it.
In State of Karnataka Vs Appu Balu Ingale & Ors, (1993), the Supreme Court held that judiciary acts as a bastion of the freedom and of the rights of the people, adding the judges are participants in the living stream of national life, steering the law between the dangers of rigidity and formlessness in the seamless web of life. “Law should be capable of expanding freedom of the people…The existing social inequalities or imbalances are required to be removed by adjusting the social order through rule of law,” the judgement held.
Again, in Valsamma Paul (MRS) Vs Cochin University and others (1996), emphasised on the secular nature of the State based on the principle of equality and non-discrimination. “The Constitution seeks to establish a secular socialist democratic republic in which every citizen has equality of status and of opportunity; to promote among people dignity of the individual, unity and integrity of the nation transcending them from caste, sectional, religious barriers fostering fraternity among them in an integrated Bharat,” it said.
Legislative history of Special Marriage Act
Arguing for a set of petitioners, advocate Arundhati Katju on April 26 laid down briefly the history of the SMA, which came into being solely to offer a secular route for consenting (heterosexual) adults to marry when religious or personal laws did not offer them a way to do so. LGBTQ couples will come to the court as issues arise, just as heterosexual couples have done so since the time that marriage laws were codified, she pointed out.
The history of SMA is itself a reflection of a growing understanding of individual choice over socio-religious compulsions. In India, marriage was governed by religious law, customs and usage till the early 19th century. With the objective of granting sanctity to British nationals marrying in India, which was at that time under the British rule, an Act for Marriages in India, 1851, was enacted by the British Parliament. The law applied to marriages where one or both of the parties were Christians and marriage registrars were empowered to issue certificates, after which marriages could be solemnised in a church, chapel or before the registrars themselves. Subsequently, the Indian Marriage Act, 1865 was passed but it was also applicable only to the Christians in India. This law was later repealed by the Christian Marriage Act, 1872.
By the 1860s, the social reforms movement, especially those led by the leaders of Brahmo Samaj and Satyashodak Samaj, had started to challenge the hegemonic Brahminical practices and subjugation of women within the patriarchal system. In 1868, Keshub Chanda Sen petitioned the colonial Government of India on behalf of the Brahmo Samaj for the legal recognition of Brahmo marriages that did not follow any set rituals and could be solemnised between persons of different castes. Responding to this, Henry Maine, a member of the Council of the Governor General of India, proposed a law of marriage between any two Indians who did not wish to marry in accordance with religious rites.
In 1872, the Special Marriage Act, 1872 was passed, which provided a form of marriage for persons who did not profess the Christian, Jewish, Hindu, Mohammedan, Parsi, Buddhist, Sikh or Jain religion. In effect, to marry under SMA, 1872, one had to completely renounce his or her religion. The 1872 Act provided for solemnisation of marriage by declaration in the form prescribed in presence of three witnesses and the Registrar of Marriages. This law also introduced the principles of monogamy for both the persons marrying under the Act irrespective of their personal laws. The 1872 Act also required that the man must be 18 and the woman, 14.
By the Special Marriage (Amendment) Act of 1923, the provisions of the 1872 Act were made applicable to Hindus, Jains, Sikhs, and Buddhists, but Muslim, Parsi, Jewish and other communities were excluded. However, even after the Amending Act of 1923, marriage between a Hindu and Parsi or between a Muslim and a Christian could not be solemnised and the parties were required to renounce their religion to have their marriage registered under the 1872 Act.
While the 1872 Act was considered a progressive legislation in making departure from the personal laws, it failed to recognise inter-faith marriages without the parties having to compulsorily renounce their religions. And mandatory dissociation from one’s religion resulted in severance from the joint family, and inability to adopt.
A major departure in the current SMA
The Special Marriage Act of 1954 was framed shortly after Independence as efforts to reform religious personal laws and to make them in consonance with the Constitution gathered more momentum and it was realised that the 1872 Act was inadequate.
In a major departure from the previous version, the 1954 Act allowed “any person in India” to get married “irrespective of their faith” as long as they fulfilled the conditions contained in Section 4 of the Act. Section 4 stipulated conditions including neither should have a spouse living; both should be capable of giving valid consent, should not suffer from any mental disorder of a kind that renders them unfit for marriage and procreation. The man must be 21 and the woman, 18. None of these conditions required that the man and woman must belong to the same religion.
However, even the 1954 Act retained the provision on severance of a Hindu, Sikh, Jain or Buddhist person married under the Act from their joint family. This was finally amended in 1976, wherein it permitted two Hindu, Buddhist, Sikh, or Jain persons to get married under SMA without severance from their joint family. However, even if one of the partners was non-Hindu, severance from family and loss of succession rights followed.
Sections 5, 6 and 7 of the 1954 Act laid down a mechanism for seeking objections to an intended marriage under SMA, prescribing display of a 30-day public notice at a conspicuous place in the office of marriage officer. It is only after the expiry of 30 days and upon satisfaction of a marriage officer, a marriage can be registered. The marriage has to be solemnised within three months of the notice, and if it is not, a fresh notice will be needed.
The requirement of public notice under SMA has often been frowned upon by the constitutional courts, holding that these provisions can jeopardise the safety of couples and expose them to harassment, besides impinging upon their privacy rights. A clutch of petitioners in the current case have also challenged the notice-objection requirement stating that it puts LGBT persons at risk from their natal families in further danger.
The constitution bench hearing the same-sex marriage case also criticised the requirement under SMA to issue a 30-day public notice inviting objection, calling the provision “patriarchal” and an apparent invasion of privacy and right to marry a person of one’s own choice.
Hearing some of the petitions that have challenged the validity of the provisions relating to public notice, the bench observed: “It’s based on patriarchy. Women didn’t have agency when these laws were framed…This is like laying them open for invasion by the society including the superintendent of police, the district magistrate etc.”
Right to marry and freedom of choice
The Supreme Court has consistently harped upon the concept of transformative constitutionalism — a constitution ought to adapt and transform with the changing needs of the times, in marshalling rights- based issues. The “golden triangle” of constitutional rights under Articles 14 (equality), 19 (free speech and expression) and 21 (life and liberty) have given rise to a spectrum of new rights, including the right to marry a person of one’s own choice. The top court has upheld this in a series of judgements in the past.
For instance, in Lata Singh Vs State of Uttar Pradesh (2006), the Supreme Court held that “inter-caste marriages are in fact in the national interest as they will result in destroying the caste system.” Deprecating the practice of ‘honour killing’ and violence by families in case of inter-caste marriages, it held: “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes.”
In a suo motu proceedings initiated by the Supreme Court in 2014 following the reports of a gang rape, the top court underscored that “the State is duty bound to protect the Fundamental Rights of its citizens; and an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage.”
In Asha Ranjan Vs State of Bihar, (2017) said that the right to choose a partner in life is founded on individual choice under Article 19. “Choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognised in the Constitution under Article 19, and such a right is not expected to succumb to the concept of class honour or group thinking,” it noted.
In Shafin Jahan Vs Asokan KM & Ors, (2018), the top court has categorically held that the right to marry a person of one’s choice is protected under Article 21. “Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme. The law prescribes conditions for a valid marriage. It provides remedies when relationships run aground. Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters,” it held.
Again, in Common Cause Vs Union of India (2018) a constitutional bench of the Supreme Court elucidated the role of freedom of choice in an individual’s life. “Our autonomy as persons is founded on the ability to decide: on what to wear and how to dress, on what to eat and on the food that we share, on when to speak and what we speak, on the right to believe or not to believe, on whom to love and whom to partner, and to freely decide on innumerable matters of consequence and detail to our daily lives,” it highlighted.
Most recently, in Laxmibai Chandaragi B & Anr Vs State of Karnataka & Ors, (2021), the apex court held that the choice of an individual to marry a person of their choice is an inextricable part of dignity, “for dignity cannot be thought of where there is erosion of choice.”
Last year, the Supreme Court took yet another leap of transformative constitutionalism. In Deepika Singh Vs Central Administrative Tribunal (2022), the top court recognised that family units may manifest in atypical ways and has upheld the need to legally recognise these “non-traditional manifestations of familial relationships”.
With the constitution bench hearing the same-sex marriage case with an evident sense of expediency, the process of judicial determination marks a watershed moment in chartering a progressive roadmap for future rights-based issues and providing a vision to the momentous civil liberties adjudication.