Uneven Reasoning of the Majority in denying the flow of Rights
In this, the third part of the series on the Marriage Equality Verdict, the reasoning employed by the majority three judges to deny the right to an abiding civil union will be discussed. The concept of Civil union was proposed by the Chief Justice of India (CJI) DY Chandrachud in his minority opinion,
The majority judgement, despite its careful usage of examples to substantiate its arguments, does not fare well in the reasoning it employs to deny the flow of rights. The CJI traced the right to enter an abiding civil union to Articles 19, 21 and 25. In opposition to this tracing, the majority judgement only recognizes a paltry right to relationship withing just Article 21.
First, there is a complete absence of reasoning as to why the rights such as Right to form Association or Right to Settle in any part of India does not give rise to right to civil union. There are examples but not the ones relevant to the case.
For example, a poetess wanting the state to create infrastructure to publish her poem (an example used by Justice Bhat) is not the same as a transperson wanting the state to sensitise its police force to not harass them. How are these two different? The police are a monopoly entity in maintaining the security of the land while the poetess can get numerous avenues to publish her poetry.
In NALSA vs. Union of India [(2014) SCC 438] Court held that public awareness programmes were required to tackle existing stigma against the transgender community. It also directed the Central and State Governments to take several steps for the advancement of the transgender community. The same way, a man asking the government to construct a house under 19(1) (e) is not same as a gay couple wanting the state to make provisions that would make discrimination against them by private persons in giving a property on rent, illegal.
There is no cogent reasoning on why the right to a civil union should not flow from Article 25 in Justice Bhat’s opinion. Justice P.S. Narasimha, in his opinion, disagrees with the CJI’s’ argument that a right to a civil union flows from Article 25. It is in this opinion that we find reasoning as to why such right cannot flow from Article 25. He states that if CI’s interpretation is allowed, the enumerations in Article 19 become redundant since these freedoms can be claimed to be actions on the basis of one’s own moral judgement under Article 25 and freedom of conscience.
However, it is well settled jurisprudence through Supreme Court judgement in the case of RC Cooper vs. Union of India [AIR 1970 SC 564], that the idea of fundamental rights being watertight compartments which do not interact with each other has been discarded and the court’s decision in RC Cooper has been affirmed by the Supreme Court in Maneka Gandhi vs. Union of India [(1978) 1 SCC 248]. This has been reiterated in Justice DY. Chandrachud (as he was then) in his opinion, in Justice K.S. Puttuswamy vs. Union of India [(2017) 10 SCC 1)].
Therefore, having similar kinds of rights in Article 25 and Article 19 does not make either of those articles redundant. It rather enriches the rights under these Articles as having backed by two fundamental rights. Therefore, the reasoning that is given in the judgement is peculiar and seems almost forced towards the conclusion it powers.
Positive Obligation of the State- the extent?
While Justice Bhat’s opinion did not provide enough reasoning to oppose the flow of right to an abiding civil union from Articles 19 and 25, it deals plenty on why the state cannot be obligated to create a parallel institution because a certain right in Part III.
Justice Bhat disagreed with the consistent observation CJI made on state’s obligation to recognise the relations to give the enjoyment of rights a full meaning. He agreed with the CJI on the fact that the rights have both positive obligation on part of the state and a negative content where there are restrictions on state power. However, he states that the extent of positive obligation differs. In the cases where the court expanded the scope of fundamental rights and asked the state to perform a duty, Justice Bhat stated that, were based on effect of laws or policies based on statutory provisions. To order a social institution or re-arrange existing social structures by creating an entirely new kind of parallel framework for non-homosexual couples requires a completely new code.
On the argument that the Supreme Court in the cases of Common Cause vs. Union of India [(2018) 5 SCC 1], NALSA vs Union of India [(2014) 5 SCC 438] and Vishaka vs. State of Rajasthan [(1997) 6 SCC 241)] -Justice Bhat gave a reasoning as to why those cannot be relied upon in the current situation.
In Common Cause, the Court reaffirmed the right to die with dignity as a fundamental right. Apart from that, the court also dealt with judgement in the case of Gian Kaur vs State of Punjab [1996 SCC(2) 648] stating that euthanasia could be made lawful only by legislation and later relied on by Aruna Ramchandra Shanbaug vs. Union of India[(2011) 4 SCC 454)]. The court stated as follows: “The two-Judge bench in Aruna Shanbaug (supra) has erred in holding that this Court in Gian Kaur (supra) has approved the decision in Airedale case and that euthanasia could be made lawful only by legislation.”
For Common Cause, Justice Bhat argued that not only was it more of a judgement that dealt with workability and need to elaborate the guidelines formulated in Aruna Shanbaug rather than forming new legislation, but it was also influenced by the Law Commission recommendations which formed additional basis for the Court’s discretion and the final guidelines.
In Vishaka vs. State of Rajasthan, the Supreme Court laid down the guidelines against Sexual harassment at workplace and these guidelines were mandated to be followed by all organizations/institutions both in public and private sector. The Supreme court went on to define Sexual Harassment and duty of the employers etc. The Parliament took almost 15 years to enact legislation to give effect to the guidelines with a law, after the judgement in 1997.
For Vishaka, Justice Bhat argued that there was all round co-operation and Union of India too expressly indicated that guidelines ought to be formulated by the Court. The trigger for the guidelines in Vishaka, Justice Bhat stated, was a resolve that gender equality manifested in Articles 14 and 15 of the Constitution as well as right to dignity) and the right to one’s profession and employment under Article 19(1)(g) needed some express recognition to ensure protection from sexual harassment in a workplace. Justice Bhat argued that, the court also relied on international conventions etc to provide the impetus required. The reasoning provided in Justice Bhat’s opinion on why a Vishaka like process cannot be followed is also not as coherent apart from the one reason that Union of India provided full co-operation unlike the current case. There is no requirement that for a right to be recognised and facilitated by the court, the Union of India or anyone agrees to it. The court has to satisfy itself that such right need not be recognised irrespective of government’s stand, within the set constitutional limitations.
In NALSA vs. Union of India, the court held that public awareness programs were required to tackle stigma against the transgender community, directed the Central and State governments to take several steps for the advancement of the transgender community including making provisions for legal recognition of “third gender” in all documents and directed the State to operate HIV-Sero Surveillance centers etc to address the severe heath issues faced by many in the community. The court’s reasoning in NALSA was of prime importance in the Navtej Johar judgement. The court also directed the Centre and State governments to take steps to treat trans people as Socially and Educationally Backward classes of Citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. These were all new guidelines, prompting the state to act in a certain way.
For NALSA, Justice Bhat does not specifically say why it cannot be relied upon but goes on to state that these three cases cannot be relied on in the current case since a completely parallel regime has to be fashioned by the court.
While all the judges agreed that there is discrimination against queer people in the country, the rights were not granted for the Queer people to overcome the discrimination. However, Justice Bhat’s opinion gave no structured reasons to why the extent of placing obligation on state to recognise a right to civil union is a point at which the line has to be drawn. And Justice P.S. Narasimha’s opinion almost brought back the pre-RC Cooper jurisrpudence such as Gopalan and Kharak Singh where fundamental rights were construed as individual rights rather than a collective code that interacts internally. The implications of both of these opinions, mainly with respect to rights jurisprudence and the obligations placed on the state, will have to be studied and deconstructed in academic discourse so that they can be efficiently countered in times to come.
(The author is a researcher with the organisation)
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