Facts
In November 2022, a group of 21 same sex couples led by petitioners Supriyo (aka Supriya Chakraborty) and Abhay Dhang approached the Supreme court seeking legal recognition of same-sex marriage under various Indian laws. The petitioners sought judicial intervention to challenge non recognition under laws like the Special Marriage Act, of 1954, the Foreign Marriage Act, of 1969, and the Hindu Marriage Act, of 1955, and invoked the court’s judicial review to safeguard the fundamental rights of the LGBTQIA+ community. The central concern in this case revolves around the recognition of the “right to marry” as a fundamental right that must be extended to couples in non-heterosexual relationships. The Court proactively took cognizance of the cases, clearly acknowledging the violence and discrimination faced by the LGBTQIA+ community in India. The Supreme Court previously made a landmark decision in Navtej Singh Johar v. Union of India1. The Court decriminalized Section 377 of the Indian Penal Code and held that violated Article 14 of the Constitution by discriminating against non heterosexual individuals; Article 15 by discriminating on the basis of ‘sex’ and was violative of Article 19(1)(a) as constrained on sexual privacy. The Court affirmed that the members of the LGBTQIA+ community are under the umbrella of constitutional protection and their rights extended from autonomy to choose a life partner, equal citizenship, and protection against discriminatory behavior on the basis of sexual orientation.
Issues raised
Issue 1
Whether the denial of marriage rights to queer couples amounts to the violation of their right to privacy and dignity?
Issue 2
Whether same sex couples have the same legal protection as non heterosexual pairs in matters like inheritance, property ownership, taxation, adoption, global mobility, and healthcare access?
Issue 3
Should the state have the authority to dictate whether same sex marriage is permissible or individual autonomy to make their own choices?
Contention
The petitioners sought an active involvement of the State in queer relationships by conferring recognition to such unions and sought amendments in Special Marriage Act, 1954 with respect to Section 4(c) of the SMA and The recognition of marriage of a non-heterosexual Indo-American couple in India under the Foreign Marriage Act, 1969, if it is registered in the USA.
The respondents contended that gender queerness is not native to Indian society and heterosexual unions precede law and thus acceptable, unlike homosexual couples. Further, they argued that queer gender identities are mostly present in urban areas and among the elite section of the society thus, relating it to the privileged class. The respondent Tushar Mehta, on behalf of the Union of India, contended that the state regulates hetrosexual marriages vested in public interest in sustaining the human population through procreation and it does not wish to accord any legal recognition to the marriage ceremony and unions of two persons from LGBT community as such intimate relationships between any two individuals cannot be subjected to state regulation and further onus falls on Parliament to enact any law or take further steps.
Rationale
The court concluded that there is no fundamental right to marry relying on the US Supreme Court decision in Obergefell2 and Parliament and state legislature hold powers to enact loss with respect to the institution of marriage mentioned in Concurrent list of the Constitution. However, the five judges concurred that same-sex couples possess the inherent right to a life of dignity, privacy, and respect, and that their relationships warrant protection and affirmation and guidelines have been issued by the Supreme court to the Centre, states, and police forces to ensure that the queer community is protected from discrimination or harassment based on their sexual orientation or gender identity. The State must enable the LGBTQ community to exercise its right under Part III of the Constitution.
The Court held that queerness is a natural phenomenon and transgender persons have been known to India since ancient times via different names like hijras, kothis, jogappas, thiru nambis, nupi maanbis, etc. The queerness in India is unique with respect to the transgender community and at no cost mimics western hierarchies or structures. The Court cited With Respect to Sex: Negotiating Hijra Identity in South India3 in para 83 to highlight the nativeness of the transgender community in India. On the question of whether queerness is elite or not, the court responded that there is ample evidence of the incidence of queerness among the rural and working communities which has been well documented in academic scholarship as well as newspaper reports in para 86. The LGBTQ vocabulary is heavily from English footprints and thus, rural individuals are less familiar with the labels like gay, lesbian, trans, etc but this does not mean that they do not exist. The advent of the British and rise of Victorian morality in colonial India led to the non acceptance norm and increased violence against the queer couples. With legislative discrimination like Section 377 of IPC, societal attitudes and beliefs became hostility towards the LGBTQ community. The social stigma got attached to any sexual orientation that was non heterosexual and any gender identity that was not cisgender. Thus, on
the matter of whether queerness is native or western influenced, the court concluded that it is no foreign concept to Indian soil and pre colonial history accounts for it.
Marriage is nowhere universally defined and geographically differs in law, culture and religion and under current laws, the court is unable to recognize same-sex marriages. Similarly, the court cannot authoritatively enforce a particular idea of marriage and listed generally accepted features in para 102. The court recognised that in certain circumstances there is no state interest in regulating personal space but the argument of sustaining society through procreation falls short as marriage is not a criteria for procreation. The court firmly stated that although the state has a legitimate interest in regulating marriage, it is not permissible for it to overstep its legislative authority and mandate the recognition of same-sex marriage through statutory measures. Further, the court cited institutional limitations and cannot read words into provisions of SMA and all other laws like ISA and HSA. Regarding adoption, the court mentioned that unmarried couples can jointly adopt a child and regulation 5(3) of the Adoption Regulations is ultra vires of the Article 14, 15 and Juvenile Justice Act.
Defects of law
Though the court highlighted that there is limited research and exploration of the literature with regards to homosexuality but it feels to give any further direction. In para 92, the access to LGBTQ vocabulary by English speaking elites is mentioned but no explicit solution or recommendations for the awareness in rural LGBTQ communities who are detached to their sexual orientation labels. The withdrawal of State from private spheres of an individual when such withdrawal can endanger their fundamental rights can raise a question whether State is adequately protecting its people. However, the Supreme Court opposed courts creating a new category such as civil unions, believing it exceeded judicial powers and emphasized the differing legal implications of civil unions and marriages but it is clearly observed that such instances of judicial overreach have proved to be beneficial in the past. And in cases where the legislative bodies are hesitant to act, judicial overage safeguards the fundamental rights of the citizen.
Moreover, the lack of queer representation in the legislature also impacts the formulation of legislation regarding the gender minority groups. The voices of the minority groups are thus, doomed in the plethora of problems and legislative works that Parliament deals with.
Inference
The Supreme Court’s decision in Supriyo v. Union of India ignited a public debate revolving around the definition of marriage, same sex unions and related legislations. Undoubtedly, it created awareness about sexual orientation and gender equality in heteronormative society like India. The access to the institution of marriage is not only limited to legal recognition of same sex couples but also crucial for individual autonomy, self definition, expression and all the material benefits which flow from the marriage legislations. Though the constitution ensures the right to choose a partner for marriage, the right to marry has not been clearly conferred in the
constitution. The Court due to institutional limitations cannot provide a remedy regarding Special Marriage Act, 1954 and other legislations cannot be held constitutional similarly on the basis of non-inclusion as such laws are subject to social acceptability. Thus, the decision balanced constitutional spirit by recognising same sex unions and judicial limits by leaving the legislative competence to the lawmakers but has created a new challenge for the LGBTQ+ community in India. LGBTQ+ rights activists see this ruling as an opportunity to continue their advocacy efforts and work towards achieving legal recognition for same-sex marriage. This decision has reinforced the importance of engaging with the Parliament and advocating for positive change for the community.
Citations
- Navtej Singh Johar v. Union of India (UOI) and Ors., MANU/SC/0947/2018
- Obergefell v. Hodges, Legal Information Institute, https://www.law.cornell.edu/supremecourt/text/14-556 (last visited Jul 21, 2024).
- Concerning sex, Reddy, University of Chicago Press (2005), https://press.uchicago.edu/ucp/books/book/chicago/W/bo3534006.html (last visited Jul 21, 2024).
Author : Tanu Priya (2nd BALLB) College: ILS Law college