Same-Sex Marriages, one step upwards of Navtej Singh Johar

by Kunal Sharma and Deeksha Singh

The Apex Court is hearing a slew of petitions seeking the legal recognition of same-sex marriages in India after a three-judge bench of the Supreme Court comprising of the Hon’ble CJI Dr DY Chandrachud invoked Article 145(3) of the Constitution for the matter to be referred to a five-judge constitution bench terming it a matter of ‘seminal’ importance.

The petition(among others) filed by a gay couple, Supriyo and Abhay, seeks the Hon’ble Court to either interpret the Special Marriage Act, 1954 as to broaden the horizon of the statute to include same-sex couples or declare it unconstitutional on the grounds of being violative of articles 14,15,19 and 21 of the Constitution of India as it ostracizes the entire LGBTQIA+ community.

Supriyo and Abhay had been in a committed relationship for over a decade before their commitment ceremony was held in Hyderabad on 17-18.12.21 in the presence of their respective families, friends, and colleagues. However, the euphoria of the ceremony soon faded only to realize that they remain non-existent in the eyes of law, meaning thereby, their relationship had no legal sanctity. Despite being in a valid relationship, they possess no right to adoption, consortium, inheritance, maintenance, tax benefits and a host of other rights that their heterosexual counterparts get as a free pass to marriage.

Interestingly, unlike the position on the sodomy law in the Navtej Singh Johar v. Union of India wherein the Union of India left it ‘to the wisdom’ of the Hon’ble Court, the Union this time has chosen to vehemently oppose these petitions. According to the Union, the issue at hand be left for the legislature to decide and any attempt of interference with the existing scheme of laws by the judiciary would fall in the category of judicial overreach. The 56-page long affidavit is premised on words such as societal morality, religion, and culture which recognizes the solemnization of marriage between ‘a biological male and a biological female’ only. Furthermore, the government believes that the petitioners only represent an ‘urban elitist view’

Whenever fundamental rights are threatened, Article 32 of the constitution(also referred to as the soul of the constitution by Dr B.R. Ambedkar) comes for guardianship. The union cannot have it both ways by first asserting that a heteronormative way of living is the only way and then asking the court to leave it for the parliament. By submitting that homosexual people do not stand on equal footing as heterosexuals, the union has made it very clear, its course of action, should it be left for them to decide. Therefore, the members of the LGBTQIA+ community have no option but to knock on the doors of constitutional courts as for them, they cannot be left at the mercy of the parliament.

The LGBTQIA+ community make up around 7-8% of the population (which is a heavily underestimated estimate as not many are open about their identity owing to the stigma attached to alternative sexualities and gender identities) and if there is a feeling that their fundamental rights as promised to them by the constitution of the land are compromised then their justification to approach the Apex Court is article 32 which in itself is a fundamental right.

The sole arbiter of the constitution cannot sit idle when its constitutional obligation bounds it to come to the rescue of the LGBTQIA+ people. The highest court of justice has a responsibility under Article 32 to act at the earliest so as to make sure that the constitutional values of justice, liberty, equality and fraternity as mentioned in the preamble to the constitution are not put in jeopardy. 

The Supreme Court in Navtej Singh Johar v. Union of India(2018) by categorically asserting the natural and intrinsic characteristics of sexual orientation provided an equal footing to LGBTQIA+ members as the heteronormative majority. Also, the  Apex Court interprets the term ‘sex’ used in Article 15 so as to include both sexual orientation as well as gender identity. Having these as the precedents, any exclusionary legislation which forms sexual or gender identity as the basis of exclusion is bound to attract the scrutiny of judicial interpretation for the simple reason of being in contravention of the equality code.

The Special Marriage Act of 1954 is a secular law which allows interfaith as well as intercaste marriages, a divergence from religious personal laws. The Supreme Court’s disinclination to cross the bridge of personal laws and focus only on secular legislation is sufficient to settle down the created havoc of it playing with religious laws.

The most problematic, however, are two stances of the government. First, hiding behind the veil of societal morality which in one word, is majoritarianism. India is a constitutional democracy where laws are to be seen from the lens of constitutional morality which puts the individual at the epicentre and therefore, falling in the number game would be catastrophic for constitutional morality, a more progressive and liberal view as opposed to the traditional majoritarisitic way. Second, calling the demand for marriage equality for LGBTQIA+ members an ‘urban elitist view’. Such statements stem from sheer ignorance of sexuality and gender. While this may be true that more people in urban areas are coming out but there are many underlining factors behind this(better education, more acceptance, more discussions around such issues, making it easier for those in the LGBTQIA+ spectrum to understand their sexuality are amongst a host of other reasons) but that is no ground to infer that this is a phenomenon attributive to only the urban class. The union has not put on record any data or study to back its claims. Making such blatant unsubstantiated claims capable of perpetuating stereotypes against a particular community is unbecoming for a responsible government whose loyalty is to every citizen of India.

The present batch of petitions only demands expanding the scope of Part III of the Constitution such as to prevent the ostracization and discrimination against the members of the LGBTQIA+ community. For years they have lived as second-class citizens. They demand no special privileges but the same treatment as their heterosexual, binary counterparts. The present petitions are only an evolution of creating a progressive, inclusive, vibrant, diverse and liberal democracy after the direction of the Hon’ble SC to recognize non-binary genders in NALSA v. Union of India(2014) to the declaration of sexual orientation being one facet of the fundamental right to privacy in JusticeK.S. Puttaswamy vs. Union of India(2017) to the decriminalisation of the draconian sodomy law in Navtej Singh Johar v. Union of India(2018). Denial of legal recognition of same-sex relationships would render the dictum passed in Navtej a dead letter.

Finally, there is one thing which must be said out loud, the LGBTQIA+ community would not have been fighting such existential battles today, only if we truly understood love, acceptance and plurality.