Introduction
In ancient Indian society, the attitude towards homosexuality was very liberal and tolerant. The idea of same-sex relations was viewed as something completely natural and these relations were practiced openly. There was no concept of ‘shame’ in homosexuality. From ancient texts like Ramayana and Mahabharata to sculptures observed in the temples of Khajuraho, there are various depictions of homosexual relations.The notion of homosexuality being perverse was forced by the British. Law of Victorian ages was based upon the ideals of the Church which was vehemently opposed to the concept of same-sex relations. The British considered sexual relations without the intention of procreation to be sinful; therefore, to eradicate homosexuality in Indian society, the Indian Penal Code’s Section 377 was implemented by Thomas Babington Macaulay in 1860. Therefore, the idea that homosexuality was always considered to be taboo and against Indian culture and values is completely false. It was only after colonisation that Indians inculcated these beliefs of homosexuality being impure.
Facts
On 14th November, 2022, two writ petitions seeking recognition of homosexual marriages in India under the Special Marriage Act, 1954 were filed before the Supreme Court. These petitions were filed by Supriyo Chakraborty and Abhay Dang and Parth Phiroze Mehrotra and Uday Raj Anand. Despite being together for over a decade and holding a commitment ceremony to commemorate their 9th anniversary, Supriyo and Abhay could not legalise their relationship through marriage like any other couple could. The couple argued that Section 4(c) of the SMA discriminated against same-sex couples by only recognising ‘male’ and ‘female’ marriages and denying homosexual couples matrimonial benefits such as surrogacy and adoption. Hence, a plea was put forward to declare that Section 4(c) of the Act was unconstitutional, along with it, many petitions which challenged other laws, including the Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969 were also put forward. On 25th November, 2022, the Union was directed by a Supreme Court Bench to respond to the petitions. A 3-Judge Bench then transferred 9 petitions which were pending and dealt with issues of a similar nature from various High Courts to itself on 6th January. A 5-Judge Constitution Bench began the hearing on this case on April 18th, 2023 and pronounced its verdict on October 17th, 2023, where it was held with one accord that the fundamental right to get married did not exist and that the Court could not recognise queer persons’ right to get married under the SMA.
Issues Raised
6 main issues were raised. They were as follows:
- Whether there is a fundamental marriage right
- Whether members belonging to the queer community have a marriage right
- Whether this case can be heard by the Supreme Court
- Whether the SMA’s Section 4(c) can be interpreted to include members of the LGBTQIA+ community
- Whether not incorporating queer marriages under the SMA violates Article 14 (Right to Equality), making it unconstitutional
- Whether unmarried members of the queer community have an adoption right
Contentions by Petitioner
The petitioners argued that the queer community is being discriminated against by the State by not including them in a civic institution, which is marriage. The petitioners sought legal recognition of their relationship with their partner and not exclusive benefits for the LGBTQIA+ community which are unavailable to heterosexual couples. The petitioners sought the following things to be declared by the Court:
- LGBTQIA+ community members have a right to get married to a person of their choice irrespective of sexual orientation and gender.
- Queer marriage should be recognised under the SMA and gender-specific words like “husband” and “wife” should be replaced with inclusive terms like “party” or “spouse”. Exclusion of the LGBTQIA+ community under SMA is discriminatory in nature and causes repeated instances of trauma.
- Members of the LGBTQIA+ community should get to enjoy the same rights and protections that married heterosexual couples do such as taking medical decisions and securing health insurance for each other, and nominating each other for life insurance.
- Married heterosexual couples enjoy legal rights and recognition bestowed by the Respondent Union, which the petitioners claimed they should get in order to avoid having to acknowledge and re-assert their relationship every time they interact with a new authority.
Contentions by Respondent
The respondents argued the following points:
- The Court does not have the power to decide this issue and it should instead be decided by the people themselves or through their representatives. The Apex Court deciding on this issue would be a violation of the Doctrine which spoke about separating powers and the legislative domain would be intruded on.
- The 5-Judge Bench agreed that the marriage right is not a right of fundamental significance. The Parliament creates laws relating to the institution of marriage and only the State legislatures are allowed to amend such laws.
- The provisions of Section 4(c) of the SMA cannot be interpreted to include members of the LGBTQIA+ community, and if such interpretation is done, it would be considered as redrafting the law.
- The Special Marriage Act, 1954 cannot be declared as void as it would set India back to a time when inter-caste or inter-religious marriages were prohibited.
- The majority opinion of the Court on the right to form civil unions and the rights of unmarried homosexual couples to adopt was that no such rights exist.
The Court did not consider the right to marriage to be a right of fundamental significance because even though a person is allowed to express their sexuality, guaranteed by the Indian Constitution’s Article 19(1)(a), its application cannot be done to marriage as the Constitution does not explicitly recognise a fundamental right to marry. On the topic of the SMA, words cannot be read into its provisions because of institutional limitations as policy matters fall within the domain of legislation. There is no legitimate state interest in recognising same-sex relationships; hence the State is under no obligation to recognise relationships of such nature.
Rationale
The Court relied on its previous jurisprudence when the 5-Judge Bench gave its decision. In the case of Navtej Singh Johar vs. Union of India (2018), same-sex relations between consenting adults were decriminalised, declaring parts of 377 which criminalised consensual homosexual sex as unconstitutional. In National Legal Services Authority vs. Union of India (2014), people who are transgender were given legal recognition as the “third gender” and their constitutional rights were affirmed. The Court stated that though every citizen has a right of fundamental importance to choose a partner irrespective of sexual orientation or gender identity, right to get married is not a right of fundamental significance and only the State is vested with the authority to make laws allowing the marriage of same-sex couples. It was stated that the rights and privileges received through marriage were due to the State recognising such rights and not because of marriage’s nature in general. It was also argued that not recognising the right to form civil unions would not violate their right to choose their own partner or their right to privacy and autonomy. LGBTQIA+ community members have the right of choice and they can enter into unions but the Court decided against providing a status of civil union to such unions, by extending the right of people to enjoy privacy, autonomy, and dignity. The Court did recognise that transgender people involved in heterosexual relationships have the right to get married under the SMA, by stating the fact that every citizen has a right to enjoy sexual privacy and they are free to choose without coercion from their family or other agencies.
Defects of Law
The Special Marriage Act, 1954 violates the Golden Triangle of the Indian Constitution – Articles 14, 19, and 21, which protect the rights to enjoy equality, freedom, and liberty. These are some basic fundamental rights that apply to every citizen of India. Not including members of the LGBTQIA+ community in its provisions equates to denying them equal protection of the law and discriminating against them based on gender identity and sexual orientation. Constitutional Morality, a concept which operates on the principles of justice, equality, and liberty, urges the Judiciary to promote inclusivity by safeguarding the rights of the queer community. Civil unions cannot be equated to a legal and social institution, which is marriage. It sends a message of subordination to the LGBTQIA+ community that their relationships are somehow inferior compared to heterosexual relationships. Every person is given the right, under Article 19(1)(c) of the Indian Constitution, to form associations or unions. Thus, it should apply to members of the queer community as well, as not doing so would reiterate that in the eyes of the law, they are seen as second-class citizens.
Inference
Homosexuality has existed ever since the dawn of time and in pre-colonisation India, it was accepted as something completely normal and part of nature. Contrary to popular belief, it is not something brought about by Western culture. Yet, homosexual couples still have not obtained the right to get married, even though Article 377 was diluted in 2018 to exclude any consensual sexual conduct between adults. Marriage is a universal social institution that formalises the union of two souls. It has social, cultural, and legal significance; therefore the right to get married to any person of one’s choice should be considered as a right of fundamental importance. Every citizen, including members of the queer community, should have the right to get married to a person of their own choice. Procreation, by itself, does not validate a relationship and it is certainly not the only purpose of marriage. Legalising gay marriage would be a natural extension of the principles enshrined in our Constitution and it would reaffirm India’s commitment to equality, freedom, and justice. By recognising and accepting love in all its diverse forms, India can pave the way for a more harmonious society where every citizen is treated with dignity, equity, and respect.
Parnika Karmakar
Jogesh Chandra Chaudhuri Law College, Calcutta University