Shravanti Suraj 
Substantive Due Process:
India has adopted and referred to provisions of the law of many countries including the United States. The doctrine of the substantive due process prevents the state to create any law that could interfere with a person’s right to liberty. It has been borrowed from the United States and was once going to be emulated in the Indian Constitution through Article 14- “the right to equality” put forth by Dr B.R Ambedkar. When Dr B. R Ambedkar approached Justice Frankfurter of the US Supreme Court regarding this doctrine and its implementation, he discouraged the use of this doctrine because it would place an undue burden on the Indian Judiciary as was seen in the US Supreme Court during the Lochner era, i.e. post- Lochner v. New York (1905), where this doctrine had been overused. However, the drafters did not fully forgo this doctrine and instead made provisions for a substantive (Article 14, 19) and procedural review (Article 22).
The doctrine invalidates state legislation that infringes ‘life, liberty or property’ as stated in the 5th and 14th Amendments of the United States. Justice Stephen J Field reiterated this in his dissent in the Slaughterhouse cases, which later become the foundation of creating the modern version of the doctrine.
As per the American jurisprudence, substantial law usually tries to, either justify the need for judicial over-reach or ascertain that the case is arbitrary, which is called substantive scrutiny. Once either of these questions is answered, two actions could take place. These actions relate to either the creation of a new enumerated right that is purposely and traditionally linked to the Constitution or the enforcement of a new right that is associated with a higher and stricter burden.
For instance, with the LGBTQIA rights and their legalizations in many jurisdictions across the world, countries either struck down (India) the section or added the required law as a part of the existing law or amendment (USA). This allows individuals to be legally accepted by the society as queer but does not specifically alter all the other laws, which are in progress, and are party to this acceptance.
In this article, we will primarily focus on addressing the overreaching issue regarding same-sex marriage in two jurisdictions, India and The United States.
Same-sex marriages have been legalized in over 30 jurisdictions. Same-sex marriage is a complex issue in a traditional and conservative society. In Obergefell v. Hodges (2015), Chief Justice Robert questioned the so-called sacrament of marriage and its definition. The union of a female and male in vows of matrimony is a principle built on binding them through vows to look after each other while furthering civilisation through procreation. If this definition does not hold good, then on what basis would a marriage be defined as, became an issue regarding this topic. Another concept associated with this, named “harm principle” is argued on the approval of the communion. This would give rise to a case of judicial overreach that would require a fundamental ‘right- creation’.
In the Indian jurisdiction, apart from the customary religious laws governing marriage, there is a provision for the Special Marriage Act, 1954 (SMA) as well as the Foreign Marriage Act (FMA). These have recently been linked to the arguments for legalizing same-sex marriages. The two cases which are still ongoing in the respective High Courts of Kerala and Delhi, have similar frustration over the non-recognition of consensual same-sex marriages. This is also against the definition of “Liberty”, which when taken in its concrete sense, consists of “the ability to choose” as said by Simone Weil and quoted by CJI Dipak Misra in the case Shakti Vahini v. Union of India and others (2018). The case allows for an individual to have the fundamental right to choose their partner, which prevents choices that are imposed against their will by society and others.
In the PIL filed in the Delhi High Court, Solicitor General Tushar Mehta further added to the prevalent argument that there has not been any acknowledgement of a homosexual marital a further argued that this will not be permissible in court as a decision in favour of the petitioner would require the court to legislate, as done in Vishaka v. State of Rajasthan (1997) which would require “violence to various laws.” Another government lawyer in a parallel case reiterated the same by using the 5000-year-old Santana Dharma, a book documenting the teachings of Hinduism. These contentions are in perfect accordance with a statement that Chief Justice Roberts makes in his dissent in Obergefell v. Hodges (2015) that echoes the dissent of Justice O’Conner in Lawrence v. State of Texas (2003),
“In any event, the marriage laws at issue here do not violate the Equal Protection Clause, because distinguishing between opposite-sex and same-sex couples is rationally related to the States’ “legitimate state interest” in “preserving the traditional institution of marriage.”
The ‘renowned LGBTQIA+ advocate’, Menaka Guruswamy referred to the case of Puttuswamy v. Union of India (2012) and the Navtej Singh Johar v. Union of India (2018) to illustrate how these cases have paved the way towards equality in terms of marriage between heterosexual and homosexual couples. It was further contended that India should recognize the LGBTQIA Community, as “full human beings” who need similar, if not more, protection and encouragement as heterosexual marriages from societal issues. Another cognate argument used by the petitioner in the Kerala High Court is that surrounding personal liberty enshrined in part III of the Constitution of India. They quoted the case of National Legal Service Authority (NALSA) v. Union of India & Ors (2014) which allowed for self-determination of an individual’s sexual identity to be fundamental and allowed for the protection of these individual’s civil liberties to be on par with all the citizens (Navtej Singh Johar v. Union of India (2018)). This re-emphasises the decision of Roberts v. United States Jaycees (1984) on the concept of “freedom of association”,
“The Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme.”
The need for this legislation after Navtej Singh Johar v. Union of India (2018) has become imperative as couples of this community struggle to be able to exercise their civil liberties and universal rights which includes the right to marriage as per The Human rights Charter in Article 16. Though there have been precedents that could be used from other jurisdictions, this perception of the “right-creation” would have to be carefully formulated without any infringement of Articles 25 to 28 which provide citizens with - the fundamental rights to Religion as well as the myriad of legal rights and regulations regarding marriage. The infringement of the Fundamental Right to Religion could be dealt with, by creating a precedent like in the case of Planned Parenthood v. Casey (1992) regarding states control on the availability of abortion procedures to women. It becomes essential to look at the method by which the Supreme Court of the US handled the substantive due process in its decision as previously mentioned we have borrowed the doctrine from them. Additionally, would need to be vigilant in the method to use it as they have found a way to balance substantive due process without overburdening their courts.
In the words of Chief Justice Roberts,
“Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
As a country which is termed to be a ‘marriage country’ by Advocate Menaka Guruswamy in her Oxford Union address, it has still not awarded the sanctity of the privilege of marriage to the queer community for this could have a high risk to disturb and demolish the paradigm of heteronormativity that society at a present function on. This essentially means that the 9% of Indians who identify as Queer, cannot take the next step of marriage which is the general objective of every long-term relationship between people in the country regardless of their sexual orientation. They are allowed to have a live-in relationship, (as acknowledged in 'Protection of Women from Domestic Violence Act, 2005 and Chinmayee Jena @ Sonu Krishna Jena v. State of Odisha & others, 2020) where the partner lives together but are not allowed to venture further as of yet but are given. Though these steps do seem to proceed towards legalisation of same-sex marriage in a few years the issue needs to be discussed at present as this deliberate delay in the decision is a continued sense of policing love by societal instruments or institutions. This would be hopefully done by both the High Courts in their decisions regarding the same in the near future. As legalisation of marriage is not just the sense of matrimony but also impact other related laws which include opening a joint bank account, insurance of any kind, succession and other aspects that have the effect on any other marital couple.
 Shravanthi Suraj is a law undergraduate from Jindal Global Law School. For any discussion related to the article, she can be contacted via mail: email@example.com
Chandrachud, A., 2012. Due Process of Law. Foreward by Justice R.V. Raveendran ed. Lucknow, India: Eastern Book Company.
Preferred Citation - Shravanthi Suraj, "The Intersection of Substantive Due Process and Same Sex Marriages", Syin and Sern Law Review, Published on 23rd January 2020.