11 Feb

The Question of Same Sex Marriage

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Contents

• Background
• Argument Supporting Same Sex Marriage
• Arguments of people opposing same sex marriage
• Key highlights of the majority verdict (3:2)
• Positives of the Judgment
• Limitations

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Background:

• In Navtej Singh Johar case, Supreme Court decriminalized homosexuality. But gay marriages still didn’t have legal recognition in India. In a landmark case, a group of 18 same-sex Indian couples had petitioned the country’s Supreme Court to legalize same-sex marriage.
  • Key Demands: The petitioners had sought a ruling by which the Special Marriage Act (SMA), 1954, which provides for a civil marriage for couples who can’t marry under the personal law, should be interpreted as gender neutral, thus allowing the same sex marriage. The current interpretation of SMA, they argued violates Articles 14, 15, 19, 21 and 25 by not allowing marriage between same-sex, gender non-conforming, LGBTQIA+ couples, and sought the words “husband” and “wife” as well as any other gender-specific term to be substituted by the word “party” or “spouse”.
  • The petitions argued that marriage brings with it several rights, privileges, and obligations that are “bestowed and protected by law”.
  • The Delhi Commission for Protection of Child Rights (DCPCR) also advocated for recognition of marriage, filing an intervention application to assist the court on the impact of such marriages on children.
• Respondents Opposing the petition:
  • The Central Government, the National Commission for the Protection of Child Rights, and a body of Islamic Scholars called the Jamiat-Ulama-i-Hind, opposed the petitions.

Argument Supporting Same Sex Marriage

• Protecting the Fundamental Rights of Every Citizen:
  • The right to marry for non-heterosexual couple is implicit in Article 14 (Equality), 15 (Non-Discrimination), 16 (Equality of Opportunities in public employment), 19 (Freedom of Speech), and 21 (Right to Life). This is specially true after the SC ruling in ‘Navtej Singh Johar vs. Union of India’ and ‘KS Puttaswamy verdict’.
  • In Navtej Singh Johar verdict, Justice Chandrachud held that members of LGBT community are entitled, as all citizens, to a full range of constitutional rights, including liberties protected by the Constitution.
• Ensuring other benefits of marriage to homosexuals:
• Being able to marry a partner would allow homosexuals to a host of rights currently reserved for heterosexual married couples – including right to jointly adopt children, own property together or nominate one another as a surrogate decision maker in a medical emergency, right to inheritance, maintenance and tax benefits.

Since Navtej Singh Johar Judgment, several high court verdicts have ruled in favor of same sex couples having the right to live together.

• In Madhu Bala vs State of Uttarakhand (2020), the high court of Uttarakhand held that right of a same sex couple to live together is a constitutional and human right.
• In Vanitaben Damjibhai Solanki vs State of Gujarat (2020), the Gujarat High Court ordered police protection for two women police constables in a relationship.
• In S Sushma v Commissioner of Police (2021), the court protects the couple in relationship and makes sure that both sets of parents are taken along in this journey.

Legal recognition of same sex marriage will contribute to society’s acceptance towards homosexuality.

A study titled ‘The Anticipated Impact of LGBTQIA+ Marriage Equality Legislation on Indian Society and Mental Health’ among Indians has found that legalization of such unions will have a “positive impact on mental health of LGBTQIA+ individuals”.

There are around 30 countries where same sex marriage is legalized. These countries have seen no harm to their culture and no deterioration of the legitimacy of traditional marriage in any place where same sex marriage is lawful.

Arguments of people opposing same sex marriage:

• They argue that same sex marriage is afront to Indian customs and is an urban elitist concept.
• The government also argued that if Supreme court legalizes same sex marriage, it will mean a virtual judicial rewriting of an entire branch of law and court must refrain from passing such omnibus orders. Proper authority for this should be the legislature.
• Some don’t consider it as normal because they can’t replicate babies.

Supreme Court Verdict: Supriyo a.k.a Supriya Chakroborty & Abhay Dang v. Union of India (Oct 2023)

• The Supreme Court declined to legalize same sex marriage, leaving it on the Parliament to legislate on the subject.
• In fact, all five judges agreed that there is no fundamental right to Marry under this Indian Constitution.

Key highlights of the majority verdict (3:2):

• There is no fundamental right to marry in the Constitution, and the court can’t intervene.
  • “An institution can’t be elevated to the realm of fundamental right based on the content accorded to it by law”.
• Legal recognition of the right to a Civil Union – akin to marriage or civil union – can only be through enacted law.
• Courts can’t enjoin or direct the creation of a legal or regulatory framework resulting in the conferment of legal status on same-sex couples, nor the same sex couples be granted the right to adopt.
  The Court cannot read words into the provisions of the SMA and provisions of other allied laws such as the Indian Succession Act and the Hindu Succession Act because that would amount to Judicial legislation.
  • The provisions and objectives of the SMA clearly points to the circumstances that Parliament intended only one kind of couples, i.e., heterosexual couples belonging to different faiths, to be given the facility of civil marriage.
  • The court in the exercise of power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain.
• Despite the above, separate directions have been issued to the Union of India for setting up a high-level committee (under the chairmanship of cabinet secretary) to help ameliorate the manifold difficulties (including discrimination) experienced by the same sec couples living together.

The minority opinion, of CJI D.Y. Chandrachud and Justice Sanjay Kishan Kaul, said the LGBTQIA+ community had a fundamental right to form relationships and that the state was obligated to recognize and grant legal status to such unions, so that the same sex couple could avail the material benefits provided under the law and also could adopt kids. But they also declined to read down the provisions of the SMA to that effect.

Analysis: Positives of the Judgment:

• The verdict respects Constitutional Morality: Separation of Power is one of the basic features of the constitution and judicial legislation would have violated it.
  • Under India’s Constitution the power to make laws – including laws related to marriage – vest exclusively either with Parliament at the Centre or with a state legislature in a state
    – by reason for provisions contained in Article 245(1) and Article 246(2) of the Constitution read along with Item 5 in the Concurrent List.
  • To bestow legal recognition to homosexual marriages would need amendment to several laws, which is the domain of people’s elected representatives, not a few selected jurists.

Analysis: Limitations:

• Right to marry is a human right as per Universal Declaration of Human Rights (UDHR) of which India is an original signatory.
  • Article 16 of the UDHR, 1948 provides that, “Men and women of full age, without any limitations due to race, nationality, or religion, have the right to marry and to form a family.
  • Since Right to Marry is a human right, it should also be recognized as a fundamental right.
  • SC in the past have relied on UDHR to interpret provisions of Fundamental Rights in India.
    • For e.g., in the Maneka Gandhi case, the SC relied on Article 10 of the UDHR to read in principles of natural justice in the administrative process to state.
• The Constitution has given the task of defending the fundamental rights of all citizens to the Supreme Court and Supreme court has in the past struck laws which are violative of
  fundamental rights. If a law is providing legal protection to some citizens and not covering other citizens, it is definitely violating Article 14 of the Constitution and it should be in the mandate of the Supreme Court to amend it.
  • The judgement will prolong the long and arduous struggle to create the conditions where same sex couples could live a life without fear, in the sweet elixir of freedom
    and equality.
• Social Morality/ Majoritarian Morality has been given more importance than Constitutional
  Morality.
  • In Navtej (2018), Justice Chandrachud had held that “the Court has to be guided by the conception of constitutional morality and not by the societal morality. In the garb of social morality, the members of the LGBT community must not be outlawed or given a step-motherly treatment of malefactor by the society”.
• Negative social implications for LGBT community: The unintended consequence of the judgement in the larger society is that the notion that the same sex couples are “not fit for marriage” will be perpetuated.

Way Forward:

• Consistent Efforts by LGBT community and other human rights group to get legal recognition:
  • Government was against same sex marriage in the SC and thus there are less chances that it would come up with amendments to recognize same sex marriage at its own.
  • The LGBT community, and human rights group will have to work on several fronts to increase the social acceptance of the same sex marriage which would eventually make government bring changes.
• Pressure on Legislature may also come from the side of the opposition parties who may be
  sympathizing with the cause of homosexual couples.
• Implementing SC verdict regarding various protection being available for queer couples.
  • This will require strong political will and strict judicial oversight as even during Navtej Singh Johar judgment, the SC had directed the state to ensure that the judgment is given wide publicity through media and government should initiate programs to reduce stigma associated with homosexuality. Five years later, almost nothing has been done in this regard.

Conclusion:

The LGBTQIA+ community was gazing upon the Supreme Court with a profound sense of
optimism. Though they were relieved about the recognitions granted in the minority judgment,
they have been left disheartened by the final verdict.