Introduction
The panel focused on the developments in equality jurisprudence in the private sphere. In particular, the panel highlighted the Supreme Court’s reluctance to make a decisive shift towards marriage equality in Supriyo @ Supriya Chakraborty v. Union of India, and the recent developments following the Uttarakhand Civil Code (“UCC”). Moderated by Dr. Srijan Sandip Mandal, the panel began with Justice Sapna Pradhan Malla analyzing the jurisprudence on discrimination in Nepal and how it serves as a model that India could follow. This was followed by Mr. Supriyo Chakraborty & Mr. Abhay Dang (Petitioners in the Marriage Equality Litigation) speaking about the everyday experiences of discrimination faced by the LGBTQ community specifically as it related to marriage equality. This led to a thorough academic critique of the apex court’s decision on marriage equality by Mr. Arvind Narrain. The panel concluded with Dr. Saumya Saxena’s discussion on the Uniform Civil Code Code (“UCC”), and broader debates on personal law.
Speaker 1: Justice Sapna Pradhan Malla (Judge, Supreme Court of Nepal)
The inaugural speaker on this panel was Justice Sapna Pradhan Malla of the Supreme Court of Nepal. Before her elevation to the bench, Justice Malla was a leading public interest lawyer advocating on issues surrounding gender justice in Nepal such as property rights for women, reproductive rights, the criminalization of marital rape among others. She has contributed to drafting various legislations in Nepal, including its constitution being a member of the country’s constituent assembly. Given her vast experience on the Bench and drafting such key laws, Justice Malla shared her insights on addressing discrimination through the judicial system, and underscored the importance of developing a robust conceptual understanding of discrimination to effectively prohibit and remedy it.
Throughout her address, Justice Malla examined several case laws where instances of discrimination against women and sexual minorities were addressed, in order to further such a conceptual understanding of what discrimination entailed. She referenced the Nepal Supreme Court’s decision which struck down a law which imposed a more lenient sentence of levying a meagre fine of Rs 500 or three month imprisonment for the sexual assault of a sex worker, in contrast to the much harsher punishments under the law for women in other professions. In this case, the Court struck down the law for not just being discriminatory but in fact, at some level, encouraging the rape of a certain category of women. By creating a distinction on the basis of the kind of work women do to determine the punishment, the law was discriminatory and unconstitutional.
Justice Malla also discussed the case of marital rape, where the court declared that regardless of the marital status of a person, consent is pivotal for sexual intercourse. Here she stressed that rape, regardless of who the perpetrator is, ought to be punished. Nepal’s legal framework now provides victims of marital rape with a range of options, including protection orders and the choice of divorce. Subsequently, she highlighted a case where the court considered the concept of “rape trauma syndrome” and convicted the accused despite inconsistent statements from the prosecutrix, recognizing the adverse impact of rape on mental health and personal well-being. In terms of compensation as well, the Court has moved from reasonable compensation to adequate compensation considering the adverse impacts sexual assault may have on the lives of women.
Justice Malla also explored the intricacies of ‘consent’ and what exactly free consent would mean in cases of unbalanced power relations. For instance, she considered a case where a sweeper in the army had engaged in a relationship with an officer. While the officer argued that this was a consensual relationship, the Court held that in such cases where there are imbalanced power relations between the parties, the woman cannot give free consent which becomes critical in these kinds of power hierarchies.
While addressing cases concerning issues of discrimination faced with respect to the property rights of women, Justice Malla highlighted how the evolution of jurisprudence led to the conclusion that marriage simply changes the social status, and not the legal status of women, making it important to uphold their legal rights, regardless of their marital status.
Justice Malla also addressed cases of discrimination against sexual minorities which resulted in a recognition of the identities of sexual minorities. The Supreme Court dictated that the category “other” or anya representing non-cisgender identities be added to all official documents and Nepalis identifying as such be given citizenship documents to reflect their new status. In another case, the court laid down the need to use dignified language while speaking about sexual minorities, further establishing that the constitution prohibited any and all forms of discrimination against such minorities.
While discussing these myriad case laws, Justice Malla emphasised the need to understand what discrimination is and where it lies in order to guarantee substantive equality. She highlighted the significant achievement of the Nepalese constitution in aligning their equality provision with that of Article 1 of the Convention of Elimination of Discrimination Against Women (CEDAW). She concluded by noting that it is not merely identification that is important, but there is also a need to further refine our understanding of discrimination by examining other principles such as intersectionality. She lauded the fact that in many cases, Nepali courts have been able to imbue these aspects into the judgement.
Addressing the audience which was largely constituted by aspiring lawyers, Justice Malla cautioned the need for perseverance and continued systemic engagement in fighting against discrimination. Commenting on the Supriyo judgement, she urged the audience to not give up the struggle. Indeed by challenging the law, one is taking on the entire system, culture and patriarchy rooted in our systems, making it a long and arduous struggle to change it.
Speakers 2 and 3: Mr. Supriyo Chakraborty and Mr. Abhay Dang (Petitioners in the Marriage Equality Litigation)
This struggle was most visible in the case concerning marriage equality for the LGBTQ community which was addressed by the petitioners in the Supriyo v. Union of India case (‘Marriage Equality’ case), Supriyo Chakraborty and Abhay Dang who highlighted their lived experiences of discrimination as a same-sex couple. They highlighted how the law treats them as legal strangers despite being the most important people in each other’s lives. When somebody asks what relationship Mr. Chakraborty and Mr. Dang shared, they are forced to identify as “friends” because they are in a relationship that bears no name. Despite acceptance by family and friends, they still cannot identify each other as partners. Mr. Dang further elucidated the significance of marriage in Indian civilisation and how it exemplified companionship, dignity and security. When somebody asks, ‘are you settled?’, the underlying connotation is one of ‘are you married?’. It shows the importance of marriage in India.
But apart from being a symbolic tie, it conferred a multitude of practical necessities for individuals. Without recognition as a queer couple, they were unable to get a joint insurance policy. Moreover, nominate each other’s partner as insurance beneficiaries or legal heirs. This is not merely a question of symbolic recognition— not being able to nominate your partner who lives with you and closest to you for years together, means nominating someone else, in Mr. Chakraborty’s father, who lives over 1500 kilometres away in Delhi. If anything were to happen to either of them, they would not be able to sign on each other’s insurance to approve a medical procedure. Inheritance benefits don’t accrue if either of them die interstate. Since your partner is neither a spouse, nor a tenant, this further makes it hard to obtain basic identity proof with a registered address. In these ways, they elucidated how lack of legal recognition fractures every aspect of their shared lives and family unit.
Despite being optimistic about the Supreme Court’s hearing and were passionate about the case, they highlighted how even the more limited judicial relief of reading down marriage statutes to recognize civil unions on par with marriage had been ruled out by the Supreme Court. While they were left with platitudes about commitment and sympathy, they had no effective relief. They stressed that their legal battle was motivated by an overarching quest for dignity and equality as equal citizens. Mr. Chakraborty argued that even if there was no fundamental right to marriage, if there is a statutory right to equality, then a right to marriage flows from that fundamental right to equality. Concluding his presentation, Mr. Chakraborty noted that even if the court battle was lost, the case still brought together important conversations on marriage equality.
Speaker 4: Mr. Arvind Narrain (Independent Researcher)
From having heard the lived experience of discrimination, the next speaker, Arvind Narrain, outlined a layered critique of the Supriyo judgement acknowledging both its strengths and shortcomings. He commended the Court for upholding the principles established in Navtej Singh Johar, which decriminalised same-sex relations, and for debunking the notion that issues faced by sexual minorities are solely a middle-class or elite problem.
However, Narrain critiqued the court’s conclusion that there is no fundamental right to marry, arguing that this stance is difficult to reconcile with past jurisprudence on Article 21 of the Indian Constitution. Narrain suggested that the minority judges may have compromised on recognizing a fundamental right to marry in an attempt to persuade the majority bench to at least grant the lesser relief of regulating same-sex relationships. However, they were unsuccessful in achieving even this reduced aim.
The second point he looked at was the constitutionality of the Special Marriage Act, 1954 (“SMA). All the justices upheld its constitutionality, barring Justice Kaul who held that it violates the right to equality. However, even Justice Kaul while acknowledging its discriminatory impact argued the difficulty of making a change to the current legal framework due to the ‘spider web’ nature of legislation where one change, say in the SMA, would then impact a whole other host of laws, effectively then encroaching upon lawmaking. He also questioned the Court’s refusal to grant even the limited relief proposed by the minority judges, such as the formation of a committee to determine the rights flowing from same-sex unions.
Narrain further highlighted the indirect foreclosure of adoption rights for same-sex couples, as the judgement effectively restricts adoption to married couples in stable relationships, discriminating against queer couples based on their marital status.
The third point of disagreement was on the question of remedies. Narrain laments how the Court gave nothing to the petitioners. He contrasts this with the range of directions and orders given by Justice Bhat in the case of Balram v. Union of India in order to operationalise the Manual Scavenging Act. In the manual scavenging case, Justice Bhat interpreted statutory requirements as constitutional entitlements, leading him to issue directions mandating compensation, education scholarships, and other measures to uphold the rights of manual scavengers and their families. However, in the Supriyo case on same-sex marriage, Narrain questions why Justice Bhat did not join Chief Justice Chandrachud and Justice Kaul in issuing similar directions to prevent discrimination and ensure access to services for the LGBTQIA+ community.
Justice Chandrachud and Justice Kaul issued a series of directions to the government to ensure that the queer community is not discriminated against because of their gender identity or sexual orientation and that there is no discrimination in access to goods and services to the queer community, which are available to the public. The police were also directed to ensure that no harassment of queer couples takes place by summoning them to the police station or visiting their places of residence solely to interrogate them about their gender identity or sexual orientation as well as to not force queer persons to return to their natal families if they do not wish to return to them. Narrain highlights the importance of these directions in the grassroots where lawyers and activists can use such tools to protect those in need. Narrain laments the fundamental inconsistency in the approach adopted by Justice Bhat whereby he issued a range of progressive directions in the manual scavenging case but explicitly stated his disagreement with this basic statement of a bare minimum obligation of the state to its LGBTQIA+ citizens.
Despite the shortcomings of the Supriyo judgement, Narrain highlighted how courts have demonstrated resourcefulness and adaptability in granting relief to LGBTQIA+ individuals and couples. He cited examples where courts have registered deeds of familial association or utilized the directions issued by Justice Chandrachud to extend protection to queer couples.
In a moving instance, Narrain points to the case of Jebin Jospeh v. State of Kerala to highlight the everyday struggles of sexual minorities that the Court should have considered while passing the judgement, which also formed the heart of his critique. In this case, the partner of the petitioner passed away. However, his body was not released to the petitioner since he was not in any legal relationship with the deceased and neither could his family afford to release it. The sympathetic judge apart from allowing the body to be released to the family, also facilitated the performance of the last rites by the partner. This example highlights the very real life or death situations people find themselves in, where marriage forms a core aspect in facilitating a dignified life. However, by denying legal recognition of marriage to same sex couples, the majority seem to be divorced from the lived reality of queer couples. Narrain highlighted this case as exemplifying the reasons why such a recognition could make a profound and practical difference for same sex couples. Indeed Supriyo was not a case about recognising same sex marriage, it was about granting marriage equality.
Speaker 5: Dr. Saumya Saxena (Associate Professor, Jindal Global Law School)
The last speaker of this panel was Dr. Saumya Saxena, who moving further from the same sex marriage issue, began examining the larger involvement of the state in other aspects of one’s personal life, specifically with respect to the UCC. Picking up from where Narrain concluded, Dr. Saxena noted how while the marriage equality case represented an instance of the state’s failure to intervene, there was in turn a fear of state intervention in ways prejudicial to the interests of individuals.
She spoke about various issues such as state intervention, religious prejudice, and imposition of a heterosexual relationship in the context of the recent introduction of the UCC by Uttarakhand. She began by characterising the Uttarakhand UCC as an exercise in mediocrity with no legislative rigour. In particular, she outlined three primary criticisms– firstly dealing with Muslim personal law, secondly what it promises for gender justice, and lastly, on its implications on live-in relationships.
With regards to the Muslim Personal Law, while the code does not mention that it is against any religion, its prohibition of the practice of Niqah Halala exemplifies prejudicial attitudes towards Muslims. Through this, she highlighted how Muslim Personal Law becomes the bait for seeking legislative intervention. Niqah Halala is a rare practice of having an intervening consummated marriage in order to reconcile with a divorced spouse. While this is very rarely practised and is in fact seen as illegal, the discourse makes it seem as if the Uttarakhand UCC is a legislative intervention seeking to criminalise this practice. This is despite various cases holding that such an intervening marriage need not occur in order for a successful reconciliation and, in some instances also this as rape. However, even when a one-off instance of this practice occurs, the entire community and personal law is held accountable and takes the blame for this process.
To emphasize her argument, Dr. Saxena utilized the example of how tribal communities have been exempted from the UCC to illustrate what kind of differences are considered acceptable and why. The exemption granted to tribal communities from the UCC highlights how tribal differences are viewed as more acceptable than religious differences. Consequently, the very premise upon which the concept of ‘uniformity’ is based becomes flawed when certain differences are deemed acceptable while others, particularly religious differences, are not. This underscores how the debate surrounding the UCC cannot be separated from the political context within which it operates. Dr. Saxena further pointed out that if this discussion were genuinely about tribal laws, it would highlight the inherent tension between federalism and uniformity. The tribal question would provide a compelling argument in favour of preserving cultural differences. By raising this point, Dr. Saxena aimed to emphasize the complexity and nuances surrounding the UCC debate, which goes beyond the surface-level arguments of uniformity.
Secondly, Dr. Saxena spoke about the gender justice aspect of the UCC which has been touted as its huge benefit. Before discussing the UCC, Dr. Saxena also briefly discussed the existing law regulating marriages across religions, the SMA which was introduced to facilitate interreligious marriage. She mentioned that a lot of ‘casual’ procedures have been developed around the SMA, especially in the State of Uttar Pradesh. By ‘casual’ procedure, what Dr. Saxena meant was procedures which were not written into the law. For instance, beyond the 30 day notice prescribed in the statute, for registering a marriage under this law, a no-objection certificate on an affidavit was required to be produced before the Courts despite there being so such legislative prescription. Similarly, the requirement to register live-in relationships under the Uttarakhand UCC reinforces the paternalistic notion that state surveillance is necessary for marriage to protect women, even where they choose not to have such interventions. The implications of having to register live in relationships include the stigma associated with being in such relationships, especially for women. For instance, how would the State protect the privacy of the women in this instance and ensure that such records remain private and men who seek to marry them don’t ask to see them.
This further illustrates the point that the state seems to favour only a specific form of heteronormative, monogamous marriage. This is evident from the fact that not only are same sex couples who wish to voluntarily enter into such marriages denied this right, but even couples in live-in relationships are subject to the state’s narrow conceptualization of what constitutes an acceptable relationship.
The idea that live-in relationships are inherently immoral is reflected even in the decisions of courts, with a recent 2023 Gujarat High Court judgement necessitating parental consent for a love marriage. Such forms of State bias can be traced back to legislative debates on the SMA. Dr. Saxena mentioned that this was introduced almost as a containment provision to fit in those people who would not fall under any other law, with an inherent bias as evidenced by the ease of divorce proceedings that such marriages are destined to fail. Dr. Saxena also illustrates the stereotypes surrounding such marriages by looking at the debates around the framing of the SMA where one parliamentary member touted the legislation as being meant for “lipstick wearing butterflies” and not for “honourable girls of our households.” This serves as an example to illustrate the context in which the States operate and litigation would take place. This points to the limits of the law, no matter how ‘progressive’ the legislation might be.
Dr. Saxena argued that the lack of attention to women’s demands in the Uttarakhand UCC is not benign, as it risks undermining social movements and leaving women’s issues unaddressed. She suggested that instead of pursuing the rhetoric of uniformity, it might be more beneficial to codify personal laws separately, acknowledging the diverse needs and perspectives of different communities.
Conclusion
This panel discussion provided a comprehensive understanding of the developments in equality jurisprudence in the private sphere, highlighting both the progress made and the challenges that lie ahead. The insights from Justice Sapna Pradhan Malla of the Supreme Court of Nepal offered a valuable perspective on how neighbouring countries have addressed issues of discrimination through their judicial systems, underscoring the importance of developing a robust conceptual understanding of discrimination to effectively prohibit and remedy it. The panellists stressed the importance of considering marginalized communities’ lived experiences, like those shared by Supriyo Chakraborty and Abhay Dang, in shaping equality jurisprudence. Arvind Narrain’s critique of the Supriyo judgement and Dr. Saumya Saxena’s discussion on the Uttarakhand Civil Code highlighted the theoretical and academic perspectives needed to balance individual rights, community needs, and state interventions in personal laws and relationships. Ultimately, the panel discussion emphasized that building a comprehensive and inclusive equality jurisprudence in the country requires a multifaceted approach that draws from the experiences of neighbouring nations, the practical realities of those seeking justice, and the academic discourse surrounding these issues.
Written by: Thejalakshmi Anil
Edited by: Saranya Ravindran
