Masoom Sanyal
INTRODUCTION
In 2018, the Constitutional Chamber of Corte Suprema de Justicia de Costa Rica, known as Sala IV, ruled on the issue of marriage equality. In 2023, the Supreme Court of India decided to hear several petitions seeking marriage equality in India. The arguments in the Indian case have been concluded and the Court has reserved its judgement. This article aims to provide a comparative analysis of marriage equality litigation in Costa Rica and India and argues why the court’s decision in India must follow a similar line of thought as that adopted by the Costa Rican Court, combined with the Indian precedent in Vishaka v. State of Rajasthan set by the Supreme Court of India.
A COSTA RICAN CASE STUDY
In Costa Rica, a ruling by Sala IV legalized same-sex marriage in 2018. This ruling followed an earlier ruling of the Inter-American Court of Human Rights (“IACHR”), delivered in January 2018, where it had held that countries that are signatories to the American Convention on Human Rights are obligated to recognize same-sex marriage. The Costa Rican government endorsed this very same judgement. However, a technical problem presented itself since the notaries were prohibited under the Costa Rican legal framework to register same-sex marriages. Sala IV decided to hear the matter and passed a ruling in August 2018, declaring articles of the Family Code that prohibited same-sex marriage as unconstitutional. The Court gave the Costa Rican Parliament eighteen months to make necessary amendments to the law, further adding that if the necessary amendments were not made within the stipulated time period, same-sex marriages would automatically become legal in the country.
Article 33 of the Constitution of Costa Rica guarantees the right to equality and the right against discrimination. However, the reasoning of the Court relied not only upon the Constitutional provision but also upon the preceding judgement of the IACHR and the international obligations of Costa Rica.
THE CASE IN INDIA: SUPRIYO @ SUPRIYA CHAKRABORTY V. UNION OF INDIA
In India, the Supreme Court has heard a batch of petitions seeking marriage equality in the country and has reserved its judgement. The primary challenge inter alia is that the Special Marriage Act, 1954 (“SMA”) insofar as it does not recognize non-heterosexual marriages is ultra vires and, therefore, must be read in a manner consistent with the Constitution. This argument is based on the ground that the non-recognition of non-heterosexual marriages under the SMA is discriminatory and therefore, violative of Article 14 (Right to Equality) and Article 15 (Right Against Discrimination) of the Constitution of India. Additionally, it was contended that Article 19(1)(a) and Article 21 are also violated.
The relief sought, then, is not merely that of a declaration of the right of non-heterosexual couples to marry individuals of their choice, but also a Constitution-compliant reading or interpretation of the SMA that would allow registration and solemnization of non-heterosexual marriages.
JUXTAPOSING THE COSTA RICAN CASE WITH THE INDIAN CASE
Article 1 of the Constitution of Costa Rica describes it as “a democratic, free, independent, multiethnic and multicultural Republic.” Article 10 makes it clear that any law can be declared unconstitutional by the special chamber of the Supreme Court of Justice of Costa Rica. In the context of Costa Rica, Article 7 is equally important, which says that public treaties and international agreements duly approved by the legislature will have “authority superior to that of the law.” Therefore, by reading Article 7 with Article 10 of the Constitution, it emerges that any law passed by the legislature will have to be in conformity with the Constitution of Costa Rica as well as the international obligations of Costa Rica. It is these two articles read together that played an instrumental role in the legalisation of non-heterosexual marriages in that country.
The Preamble to the Constitution of India describes India as a “sovereign socialist secular democratic republic.” Article 13 of the Constitution of India makes it clear that the State shall not make any laws in derogation of the fundamental rights of the individuals, as guaranteed by Part III of the Constitution. If an individual’s fundamental right is taken away by any law, they have the right to approach the Supreme Court or a High Court by virtue of Article 32 and Article 226 respectively.
Having looked at the critical constitutional provisions of both countries, a comparison of the marriage equality litigation of both the countries is required. It is not difficult to see the parallels in both cases – first, there is a challenge to the non-recognition of or prohibition on non-heterosexual marriage on the ground that it violates the rights of the individuals guaranteed by the Constitution; second, the question is not about mere recognition of such rights, but of enforcement of those rights (namely, the right to marry, and the “bouquet” of rights consequent upon the recognition of marriage) since the statutory framework (namely, the Family Code in Costa Rica and the SMA in India) does not allow the registration of non-heterosexual marriage – therefore, it relates to the constitutionality of these statutory provisions.
It is submitted that given the parallels highlighted in the preceding paragraph, the judgement of the Indian Supreme Court can easily adopt a reasoning similar to that followed by the Sala IV, at least to an extent. Sala IV held in its judgement that the impugned provisions of the Family Code were unconstitutional, and gave the Costa Rican Parliament a time period of eighteen months to amend those provisions to bring them in harmony with the Constitution, thereby recognizing non-heterosexual marriages in the country. The Court further ordered that if the parliament did not amend the law in the stipulated time period, a de facto legal recognition would be granted to non-heterosexual marriages. In that sense, the parliamentary exercise was just a formality in the Costa Rican Case.
The Indian Supreme Court can take a similar course of action with certain alterations. As we have seen, the prayer before the Court is clear: a mere declaration of the right to marry under the Constitution will not suffice, the declaration must be backed by amendments to the pre-existing statutory framework recognizing non-heterosexual marriages. If indeed the Court finds merits in the arguments of the petitioners, the Court can hold the impugned provisions of the SMA unconstitutional, and give the Parliament a stipulated time period in which to amend the law, following the Costa Rican example. However, instead of holding that if the parliament did not amend the law within the stipulated time period, non-heterosexual marriages would become legal automatically from the date on which the stipulated time period ends, the Court may order that the judgement of the Court will hold field until the necessary amendments are carried out by the Parliament, making non-heterosexual marriages legal from the date of the judgement itself. Doing so is necessary to allow the Parliament to take care of the finer elements and the technicalities, while the Supreme Court lays down a clear position of law – this ensures that the Parliament does not withhold the fundamental rights of certain individuals while it debates and decides the specific provisions of law. A precedent exists in the form of the Court’s landmark judgement in the case of Vishaka & Ors v. State of Rajasthan, which gave the Court the power to prescribe the law until the Parliament enacted a formal legislation for protecting women from sexual harassment in the workplace. In the present case, the Court may follow a line of thought that combines the approach adopted by the Costa Rican Court in the Marriage Equality Case of 2018 and that adopted by the Indian Supreme Court in the Vishaka case.
CHALLENGES: WHY THE SUPREME COURT AND PARLIAMENT MUST WORK TOGETHER?
It is not asserted that granting recognition to non-heterosexual marriages would be free of challenges. Apart from the societal challenges, there are also various legal challenges that will be thrown up once the court recognizes non-heterosexual marriages. For instance, if a marriage between two men breaks down and one partner seeks maintenance from another partner, there will be a lacuna in law in this regard as Section 125 of CrPC clearly uses the word “wife”. The concerned provision of Cr.P.C. would therefore have to undergo an amendment to become more inclusive. Similarly, in another instance where a person is abusive towards their spouse, would the spouse being male approach the Courts under Section 498A of IPC, which inherently views women as the perpetual victim?
It is to deal with these kinds of challenges that it becomes necessary that the Supreme Court allows the Parliament some time to debate and decide the specific provisions of law and make necessary amendments. The legislature is amply empowered to deal with these challenges and fill the legal lacunae that may arise in due course of time. However, it is nobody’s case that the Supreme Court should not grant legal recognition to non-heterosexual marriages only because of these challenges.
The author is a student at Gujarat National Law University
Image Credits: iStock
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