Tracing Legal Recognition for Same-Sex Marriage in India: A Discord Between a Progressive Constitution and a Conservative Society
India’s constitution is ready for recognizing same-sex marriage as the groundwork for marriage equality was laid down by the landmark right to privacy judgement (Puttaswamy v. UOI). The majority held that people of alternate sexuality have a right to family life, stating that “family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognizes an inviolable right to determine how freedom shall be exercised”. However, considering the marriage equality issue did not directly arise in the case, the Court resisted in ruling finally on the issue. Despite recent recognition of LGBTQ rights in Naz Foundation, NALSA and Navtej Singh Johar judgements, marriage equality appears to be a distant dream for same-sex couples because of social disapproval. Recently, petitions have been filed across various High Courts seeking legal recognition of same-sex marriage in the most populous democracy. This could well turn out to be a watershed moment for the human rights of LGBTQ community across the globe.
Marriage inequality is manifestly arbitrary as its justification is grounded on social stereotypes and lacks rationality.The Supreme Court’s ruling in Nitisha v. Union of India gives a more holistic understanding of discrimination. It focuses on indirect discrimination, caused by a facially neutral criterion by not taking into consideration the underlying effects of a provision. While marriage laws are facially neutral as they give everyone the right to marry (narrowly defined as a companionship of ‘a man and a woman’), their application leads to indirect discrimination against those not identifying as heterosexuals.
Unsurprisingly, the State has recently opposed a petition seeking recognition for gay marriage in India stating that the Indian family unit concept presupposes a “bond between a biological man and a biological woman” from which children are born. It has further argued that only the legislature can regulate personal relationships by judging “societal morality and public acceptance based upon Indian ethos”.
There exist fault lines in these submissions. Firstly, the State has misconstrued procreation as the sole purpose of marriage, which indicates a manifestation of a mindset of societal values prevalent during the Victorian era. Such an obsolete concept would render void even marriages involving heterosexual individuals who are infertile. Furthermore, limiting marriage to “biological man and woman” contravenes the progressive ruling in NALSA which accords priority to self-identified gender over biological sex.
Secondly, the State has taken a self-contradictory stance for previously it called upon the judiciary to ban the instant-divorce practice of Muslims claiming that “even core and essential religious practices cannot violate fundamental rights”. Also, its assertion justifying discrimination based on societal unacceptance stands vitiated for it degrades the very essence of constitutional morality which fosters tolerance and respect for diversity of lifestyle and fluidity of sexual orientation. The right to privacy warrants autonomy over intimate personal choices of life including expression of sexual orientation. Accordingly, homosexuals have a plenary right to decide matters which define their personhood and identities.
The choice of a partner and intimacies of marriage lies within the exclusive domain of privacy, as enunciated by the Supreme Court in Puttaswamy and Shafin Jahan judgements. While the right to marry a person of one's choice has been recognized to be a fundamental right apropos of heterosexual couples, its application in no reasonable construction can oust homosexual couples for fundamental rights extend to every individual. This resonates with Article 16 (1) of UDHR, which guarantees the right to marriage. Marriage entails formal, social, legal and emotional manifestation of companionship, which is no different for homosexuals. Their relationship is incomplete as the prerogatives associated with marriage (including maintenance, inheritance and protection against domestic violence) are nonexistent in other forms of relationship. The non-recognition of their marriage strikes at the very dignity of their existence and denies sexual agency, guaranteed by the Supreme Court in Navtej Singh Johar judgement for marriage is considered as the only acceptable and “normal” form of intimacy in Indian society, even for heterosexual couples. Therefore, recognition of same-sex marriage would work as an engine for social change towards the acceptance of homosexuals.
The acknowledgement of sexual autonomy of homosexuals without recognizing their marriage led to the incomplete realisation of freedom of sexual expression. A law prohibiting their marriage imposes life in solitude, with a constant fear of being discovered. As "fear silences freedom", so does the heteronormative definition of marriage. India’s judiciary has previously relied upon international conventions (UDHR, ICCPR and Yogyakarta Principles), which require States to allow universal enjoyment of human rights, regardless of sexual orientation and gender identity, to recognize LGBTQ rights. Moreover, marriage inequality disregards the principle of comity of nations as it is well established that the constitution is interpreted in light of international developments. India kept turning a blind eye when 30 democracies around the world such as western societies (the US, UK and numerous European democracies, etc.) and many parts of the Global South (South Africa, Taiwan, Columbia, Brazil) have already recognized the rights of homosexuals to marry.
The Judiciary has been the source of transformative constitutionalism in India as it has prompted transformation in the exclusive society through inclusive constitutional principles for the attainment of substantial equality. The constitutional guarantee of the right to marry should go beyond the narrow definition of binary of sex and gender. The constitution has sufficient provisions to recognize their rights. The fundamental rights under Article 14 (equality), Article 19 (freedom of expression) and Article 21 (personal liberty) together constitute a holy trinity, often used together as a framework to safeguard personal autonomy and dignity. Thus, social institutions such as marriage need to be made inclusive for homosexuals to get institutional recognition "to perfect their relationships" in a marriage-based society. Now, it is for the judiciary to interpret these provisions in line with the liberal and egalitarian spirit of the constitution, and recognize same-sex marriage at par with heterosexual marriage.
Shantanu Singh and Devyani Sahu are undergraduate law students at the Dharmashastra National Law University (DNLU), Jabalpur, India, as well as Managing Editors for the DNLU Student Law Journal.