Introduction
Against the backdrop of the LGBTQ movement, two same-sex couples filed a writ petition (hereinafter ‘Supriyo’) at the Supreme Court seeking legal recognition for same-sex marriages in India, also questioning primarily various provisions of the Special Marriage Act, 1954 (hereinafter ‘SMA’) and the Juvenile Justice Act challenging traditional norms and paving the way for a paradigmatic shift in recognizing and reshaping the contours of love and marriage in the country. The petitioners pleaded before the court to read ‘male’ and ‘female’ as ‘spouse’ under Section 4 (c) of the SMA. Arguing that the non-recognition of same-sex marriage infringes upon equality, freedom of expression, and dignity; the petitioners base their stance on two pivotal cases: NALSA v. Union of India, which recognised non-binary gender identities and Navtej Singh Johar v. Union of India, a case guaranteeing equal rights for homosexual persons. The court’s majority judgement finally held that there exists no fundamental right to marriage, upheld the validity of Section 4 of the SMA and state that indirect discrimination faced by queer couples such as bar to adopt jointly, insurance and healthcare access must be cured by the state and not the judiciary.
Scope of this Article
In order to reconcile the judicial methodology employed by the court in its deliberations on the matter at hand with a more comprehensive theoretical framework, we shall endeavour to integrate elements of both Dworkinian and Hartian jurisprudential perspectives into our analysis; specifically, drawing upon their respective conceptions of rights, principles, and hard cases. This synthesis will enable us to provide an examination that not only accounts for the court’s approach but also furnishes the conclusions regarding the underlying legal issues implicated therein. The primary theory given by Hart and Dworkin is introduced; however, this piece restricts its focus to scrutinizing the authority of the judiciary in addressing the courts’ reasoning for articulating their inherent capacity to legislate on matters pertaining to marriage equality, while simultaneously contending that no such fundamental right to marriage actually exists.
Hart’s theory of the rule of recognition
Hart’s philosophy of legal positivism is concentrated on his concept of the Rule of Recognition. The Rule of Recognition is the ultimate rule underlying any legal system that constitutes the common identifying test for validity of any law in the legal system, also mentioned as the ‘touchstone’. The two requirements for a legal system include general obedience of bulk of citizens although they might not know the specifics of it and the Rule of Recognition; and acceptance by officials in their conduct.
Dworkin’s concept of principles and policies as part of the legal system
For Ronald Dworkin’s theory on the nature of law, law consists not merely of rules but also non-rules such as Principles. He is recognised as a neo-naturalist or a neo-positivist, whose philosophy is centred around ‘natural’ and ‘morality.’ While Hart propounds the legal system to be restricted by ‘Rules’ as laws and judges to be restricted to these rules while adjudicating, Dworkin believes that except rules, principles form a part of the legal system and are used by judges during adjudication. According to Dworkin, principles are standards which are to be observed due to being a necessity for justice, fairness or some other factor of morality. Policies are standards that set out a goal to be reached, generally an improvement of the social, economic or political nature of the community. He says these are not a part of law, since principles are not ‘social goals’, while policies are. For Dworkin, principles such as ‘no man must reap benefit of his own wrong’ is a principle, which is used by judges while adjudicating although it does not constitute a ‘’rule’ as per Hart.
Hart’s concept of ‘Hard cases’
Hart contends that formalities often succumb to the rigidity of words; however, in a “clear case” where it is evident an exact rule applies, formality may indeed be appropriate. The majority of instances arising within our society fall under these ‘clear cases,’ but there remains a notable portion characterized by their inherent ambiguity presented during trials. Hart argues for the necessity of flexibility and discretion in such uncertain cases: his contention is not against all forms, but rather only when they strip legal discourse from its essential nuances. Within these cases, a clash persists between the ideal of law and the statute’s wording; indeed, two conflicting ideals may even coexist–these are what Hart characterizes as “Hard Cases“. Hart appeals to an idea of a “hard case”: it is within this confusing territory or rather ‘penumbra’, filled with debatable instances where words neither obviously apply nor clearly exclude. In such instances – where uncertainty lingers, purposive ideology comes into play. The “open texture” of words in statues, coupled with the unpredictability of human behaviour, acts as the limiting factors for such cases to exist. Hence, it becomes imperative that judges adopt a purposive approach: an attempt to untangle and understand this hidden contextuality within those words, ultimately reaching a just outcome. Clear examples of these efforts manifest in rulings like Riggs v. Palmer and Henningsen v. Bloomfield Motors Inc. According to Dworkin, principles are binding and a part of law. They have bindingness because judges have to consider them and then apply them, although there might be other overpowering considerations in some cases. Whereas, Hart says that principles are only to be used in penumbral cases where there is no law and hence, ‘make law.’
Hart says that judges have strong discretion in hard cases to freely and characteristically do what they want. Legal Positivists like Austin agree with this. Dworkin says that only weak discretion is available to judges even in hard cases, and the principles still bind them and are a part of the legal system so judges have weak discretion. Dworkin contends that origin of principles is from community’s moral practice.
Supriyo qualifies as a Hard case
Supriyo, according to both Hart and Dworkin is a hard case. This is because the question of law is ambiguous as to the ‘Rule’ or ‘law’ existing around marriage in society, wherein 2 questions arise: firstly, whether there is a fundamental right to marriage under the Indian Constitution and secondly, whether the word ‘spouse’ can be read into Section 4 of the SMA. The second question is an assessment of whether there exists ambiguity as to the rule including same sex marriage couples or not. Judges cannot decide this mechanically via ‘rules’ already existing in society since same sex marriages were not envisaged during making of the Constitution (and hence, the Constitution is the Rule of Recognition) and therefore, it is in the penumbra of the legal system. Judges will have to import other mechanisms such as principles, policies, morals and discretion to decide this case since the current law is insufficient to do make this assessment.
DOCTRINE OF SEPERATION OF POWERS AND JUDICIAL REVIEW
Chief Justice DY Chandrachud’s minority opinion affirms that the Court is vested with the authority to hear this petition under Article 32. He draws the conclusion that the Doctrine of Separation of Powers allows the court to determine the scope and effect of Fundamental Rights under Part III of the Constitution, but not in mandating the Parliament to make laws to that effect. The doctrine of separation of powers dictates that each of the three entities comprising the state – the legislature, the executive, and the judiciary, are bestowed with specific duties in separate domains. Each branch is restricted to fulfilling its own role and may not encroach on those of any other branch. Doctrine of Separation of Powers and Judicial Review are both a part of the Basic Structure. He elucidates that Separation of Powers hasn’t been recognised rigidly in the constitution, but in practice a functional understanding of it has emerged through judicial function. According to Dworkin, this will be a principle which is not explicitly laid down in the Constitution, but is grounded on the principle of democracy, which are underlying norms driving actions of different branches of the judiciary. The courts have eventually formulated the doctrine and elucidated that there are ‘essential’ functions of each branch, but this has been done post applying weak judicial discretion since the principle of democracy was underlying the judges’ function, as in cases of Golak Nath, Shankari Prasad and Keshavnanda Bharti. He gives the example of the Vishakha judgement, wherein directions to prevent sexual harassment of women in the workplace were given based on rights accruing from Article 14, 19(1)(g), and 21. The underlying principles were a normative equality (discrimination) and equality, which are vague and hence it is a hard case. The judge constructs the institution’s character. Doctrine of Separation of Powers is operational herein where the court restricts itself to only issuing directions, enlarging the scope and effect of fundamental rights but only the legislature has the subsequent power to enact laws.
THE COURT CANNOT ‘MAKE’ LAW
The bench unanimously holds that the Supreme Court cannot impart legal recognition to same-sex marriages, since it does not have the mandate to ‘make law,’ and that that is the legislature’s mandate. The case is arguably a polycentric case, meaning that personal laws regarding the multitude of rights granted by state-sanctioned marriages were intricately intertwined with numerous statutes, including those governing criminal offenses. As a result, it was deemed a quintessential example of a “polycentric dispute.” Polycentric disputes are within legislative domain, since they require consultation on policy and adjudication is not the best remedy therein, as has been held in the case of Indian Ex Servicemen movement.
The resolution of such policy issues entails intricate considerations not only pertaining to technical and economic factors but also necessitates balancing conflicting interests, making democratic reconciliation more effective than adjudication. If the court would have gone into these considerations, according to Dworkin these would have been underlying principles on the basis of which discretion is exercised. Supriyo allows for the prayer to read gendered words in SMA as “spouse,” a gender-neutral term, only if we either augment the provisions with additional language or interpret these existing categories more broadly than what is prescribed by law. This extension of its scope towards non-heterosexual couples directly contravenes legislative intent and renders it an improper application; therefore, adopting a Githa Hariharan style interpretation would not have been permissible for the Court.
According to Hart, reading words into the legislation of SMA and reading gendered terms as ‘spouse’ would be judges using strong discretion, and not relying on any underlying principles. Dworkin acknowledges the necessity of weak discretion, but repudiates the existence of strong judicial discretion. A judge does not adjudicate a case in isolation, but rather relies upon established rules that reflect and are guided by fundamental legal principles. Therefore, when grappling with a hard case, it is upon the judge to ascertain which course of action aligns with the comprehensive doctrinal framework of the existing law, thereby having weak discretion within the limited boundaries of the legal system.
INSTITUTIONAL RIGHTS GRANTED BY THE SUPREME COURT AND DWORKIN’S RIGHTS THESIS
Justice Hima Kohli and Justice Ravindra Bhat concluded that “there is no unqualified right to marriage except that recognised by statute including space left by custom.” They have strictly conformed to the principle of separation of powers, and adhered to their institution abstention from delving into matters of the legislature.
According to Dworkin’s rights thesis, judges decide cases by confirming or denying concrete rights which must be institutional and legally valid. These institutional rights, which pertain to specific political institutions, can only be enforced when they pertain to the law. They originate from what remains after abstract and concrete rights have been considered. In this case, abstract right can be accrued to be the fundamental right to marriage, and the concrete right demanded is the court reading into current statutes to construe the right to marriage. Dworkin argues that judges must assert or negate concrete institutional and legal rights in order to decide difficult cases. These institutional rights are binding when they pertain to the law. To address the issue of identifying additional rights beyond those explicitly stated in legal codes, Dworkin proposes a methodology for differentiating between various categories of rights. In Vishakha for example, the abstract right is equality and anti-discrimination, but the concrete right eventually is the POSH Act, which is enforceable. The judge is constrained by institutional obligations, even when the power of these limitations remains ambiguous. Thus, their authority is not entirely unrestricted, particularly in hard cases. The judge assumes responsibility for the institutional identity. Thereby, the court could not have gone into passing directions to legislature to create law on same-sex marriage, or recognised it in itself. Long-standing institutional identity of the identity conformed with the Doctrine of Separation of Powers and leaving legislating to the Parliament. Judicial activism is limited till creation of new law.
CONCLUSION
According to Dworkin, In hard cases, judges must exhibit deference to both societal and constitutional norms, while also acknowledging that their discretion is not absolute. Furthermore, a judge considers communal morality above personal convictions, even if it means ruling counter to popular opinion. While the popular opinion in this case cannot be clearly defined, since the data to quantify support for same-sex marriages is unassessed. Judges of this bench must skilfully exercise discretion in navigating the contested space of institutional and philosophical fit, manoeuvring through existing frameworks. Herein, there is a need to rely on principles in arriving at a conclusion, as opposed to merely pedigreed rules. Therefore, in this case the majority judgement on whether the court has the power to hear this petition and grant fundamental right to marriage legal recognition is adjudged on the basis of already underlying principles of separation of powers and democracy, thereby it is a weak discretion case according to Dworkin. According to Hart, judges when there is a penumbra act on strong discretion, which is an untenable argument since the principles relied upon form a part of the judicial institution, and the judgement hence is not based on strong discretion. The court, in adherence to the Doctrine of Separation of Powers and its historic institutional identity, could not have prescribed directives for the legislature concerning same-sex marriage legislation or even acknowledged it. The task of law-making remains exclusively within Parliament’s purview; this principle limits judicial activism up until a new law is made.
(This post has been authored by Palak Khanna, a student at National Law University, Delhi.)
CITE AS: Palak Khanna, ‘A JURISPRUDENTIAL ANALYSIS OF THE PLEA FOR MARRIAGE EQUALITY’ (The Contemporary Law Forum, 2 March 2024) <tclf.in/2024/03/02/a-jurisprudential-analysis-of-the-plea-for-marriage-equality/>date of access.