It is not surprising that our courts are still struggling to grapple with the complexities around LGBTQIA+ issues.
ON September 6, 2018, when in the landmark judgment of Navtej Singh Johar vs. Union of India a five-judge constitutional bench of the Supreme Court of India struck down those provisions of a 162-year-old colonial statute (Section 377 of the Indian Penal Code, 1860) that criminalized private and consensual same-sex activity between adults, one of the judges remarked: “Sexual orientation of a person is an essential attribute of privacy…The right to privacy is broad-based and pervasive under our Constitutional scheme, and encompasses decisional autonomy, to cover intimate/personal decisions and preserves the sanctity of the private sphere of an individual.”
It is precisely this attribution of privacy that has, rather ironically, stymied the Delhi High Court’s ability to adjudicate in favour of recognizing same-sex marriage. In fact, the issues facing Indian courts are actually more expansive than mere questions of privacy rights for homosexual people.
Also read: Do same sex couples have the right to marry?
Multiple petitions are now pending before the Delhi High Court seeking to recognize same-sex marriages in India under the Special Marriage Act, Hindu Marriage Act, and Foreign Marriage Act, among others, with the next hearing scheduled for tomorrow.
In a response to these petitions, the Solicitor General of India, Tushar Mehta, appearing on behalf of the Union Government, made a few observations in October last year. He said that the term ‘spouse’ and ‘marriage’ in the Citizenship Act referred to heterosexual couples only, and hence, de facto excluded same-sex couples. Moreover, this was a position that the government was comfortable with.
The government’s stance on the issue is clear: courts should refrain from legitimizing same-sex marriage.
Secondly, he stated that Navtej Singh Johar decriminalized private, consensual same-sex activity between adults. It did not discuss public, consensual same-sex activity, and hence, could not be attributed to granting homosexual people marriage rights.
The Union Ministry of Law and Justice had in February 2021 remarked that ‘legitimate State interest’ lay in limiting the institution of marriage to those of the opposite sex only to preserve ‘social morality’. Hence, the government’s stance on the issue was clear: courts should refrain from legitimizing same-sex marriage.
Also read: A Spectrum of Pride: Recognising Same-Sex Marriage in India
Two challenges facing the courts
The contemporary discourse in India surrounding equitable marriage laws has typically focused on religious minorities (specifically Muslims) and women. The Supreme Court’s landmark NALSA judgment in 2014 recognized the constitutional rights of the third gender for the first time. Similarly, successive Supreme Court judgments like Puttaswamy (in 2017) and Navtej Singh Johar (in 2018) did the same for sexual minorities.
In doing so, the courts did precisely that which staunch opponents of same-sex marriage had feared – namely, expanding the legal contours of sex, gender and sexuality overnight, in ways that even the courts were not equipped to grapple with. In fact, the Apostolic Alliance of Churches and the Utkal Christian Council – two groups that opposed the reading down of Section 377 – stated that “the decriminalization of Section 377 IPC will open a floodgate of social issues which the legislative domain is not capable of accommodating as same sex marriages would become social experiments with unpredictable outcome.” Even though their arguments did not sway any of the five Supreme Court judges adjudicating the constitutionality of section 377, these words ironically carry weight today given the Delhi High Court’s reluctance to recognize marriage rights for same-sex couples.
Marriage can be private when it is seen as an intimate coupling of two people, and it can be public when it is celebrated as a collective union of two people – and two families. If hostility to LGBTQIA+ people comes from both the public and private sphere, why should positively affirming rights be restricted only to the private sphere?
Keeping in mind the historical cis normative and heteronormative framing of Indian law, it comes as no surprise that our courts are still struggling to grapple with the complexities around LGBTQIA+ issues. One such issue facing the courts is the contested idea of individual privacy.
While the Supreme Court of India made it clear in Navtej that consensual and private same-sex activities between adults did constitute an essential part of one’s privacy, the same court did not make explicit the distinction between the private and the public sphere. In its judgment, the court talked a great deal about the social ostracization and humiliation faced by the Indian LGBTQIA+ community, but by limiting itself to the domain of the private sphere, it left to one’s imagination the determination of whether marriage was public or private; after all, marriage can be both a private and public affair – just like sexuality. Marriage can be private when it is seen as an intimate coupling of two people, and it can be public when it is celebrated as a collective union of two people – and two families. Moreover, if hostility to LGBTQIA+ people comes from both the public and private sphere, why should positively affirming rights be restricted only to the private sphere?
Some would say that greater visibility could actually help LGBTQIA+ people live more freely, and therefore, help society be more sensitive to their needs. The fact of the matter is that the formal recognition of same-sex marriage would push same-sex couples even closer to the mainstream and into the ‘public sphere’ – a space primarily occupied by heterosexual people in India today. It seems as though courts are uncomfortable with this possible development, hence their reluctance.
Also read: Why Same-Sex Marriages Must be Judged at the Constitutional Altar
The second issue facing the courts is more complex and relates to the long-standing contestation between religious freedoms, and the rights of sexual and gender minorities. More specifically, it relates to the tensions between fundamental rights as enshrined in Part III of the Indian Constitution and the relative immutability of Indian personal laws.
Interestingly, opposition to decriminalizing homosexuality in India has come from representatives from Hindu, Muslim, and Christian faith-based groups over the years (although legal opposition in the Navtej case was primarily Christian) Given the splintered nature of Indian personal laws – messily carved on the basis of religion – it is difficult to say which religious group, if any, would want their personal laws amended to incorporate equal rights for homosexuals – a group of people that most religious leaders would condemn as immoral or sinful even today. It is also uncertain why these orthodox religious groups would want to change their laws now, why they should do it and how they would go about it, because these amendments would not just need to cover marriage rights, but would also need to have provisions for divorce, rape, adoption, and inheritance, among other things.
Proponents of a Uniform Civil Code should know that in Narenda Modi’s India, it is unlikely that LGBTQIA+ rights will find space. After all, this government neither opposed nor advocated for the decriminalization of homosexuality, but did oppose amending the Hindu Marriage Act to recognize same-sex marriage.
It has been suggested that that same-sex marriage advocates should not emphasise on amending personal laws, but instead, focus on either amending secular legislation like the Special Marriage Act (which facilitates marriages between people of different religions, or those who don’t want to be bound by their religion’s personal laws) or reading down the Special Marriage Act as unconstitutional on the grounds that it discriminates against sexual and gender minorities. While this approach may sound feasible, it doesn’t address the elephant in the room: namely, the failure of our legal system (and our society) to properly remedy the glaringly obvious contradictions between fundamental rights on the one hand and gender/sex discrimination under personal law on the other.
Also read: Scope of same-sex marriages and gender neutrality of the Special Marriage Act [Part I]
Also, while an amendment/reading down of the Special Marriage Act may offer some relief to same-sex marriage advocates, it begs the question of why homosexual people should have to seek legal recognition outside the purview of religion? Why can’t one be a queer person of faith? Or is this beyond the law’s imagination? Why should, for example, a same-sex Muslim couple have to choose between affirming their deeply held religious beliefs and having their romantic relationship recognized by the law? These are complicated questions that courts across the world are still trying to answer, and social morality plays an important role in determining how courts behave.
Keeping in mind India’s constitutional underpinning as a secular republic and the progress made by LGBTQIA+ activists over the years, it is pertinent that the Indian judiciary attempt to resolve some of these paradoxes once and for all.
The Netherlands was the first country in the world to legalize same-sex marriage more than 20 years ago. Since then, 31 countries have followed suit. However, identifying as LGBTQIA+ is still illegal in 70 countries, with some countries even prescribing the death penalty for homosexuality.
India lies somewhere in the middle – with a watered-down section 377 in its statute books, it is no longer a crime to enter into adult, consensual, and private same-sex relationships. However, the absence of robust LGBTQIA+ inclusive policies at the union, state and district levels, and an overall lack of political will to create better laws for LGBTQIA+ people means that these issues will take a back seat.
When the union government stated that there existed a ‘legitimate State interest’ to limit marriage to a bond between a biological man a biological woman, one must ask: Why? What business does the State have in excluding from the contours of marriage adults in consensual relationships who form a(n) (in)visibly oppressed minority group?
The legal framing to recognize non-traditional heterosexual marriages exists in Indian jurisprudence.
It should be noted that in Arunkumar and Anr. vs. The Inspector General of Registration and Ors. (2019), the Madras High Court upheld a Hindu marriage between Arunkumar (a cisgendered man) and Sreeja (a transgender woman). Justice G.R. Swaminathan remarked that the term ‘bride’ in Section 5 (conditions for a Hindu marriage) of the Hindu Marriage Act must not have a static meaning. Instead, it had to be reinterpreted in light of changing socio-cultural norms to also include transwomen, intersex people, and other transgender people who identified as women. The court further recognized the existence of multiple gender identities. While the court did not discuss same-sex marriage in its judgment, it did uphold the validity of marriages across genders (that is, those who were not biological women – contrary to the union government’s position).
Also read: How constitutional courts can recognize same-sex marriage [Part II]
The right to marry a person of one’s choice was also determined by the Supreme Court in the famous Hadiya case of 2018 in the context of inter-religious marriage and religious conversion from Hinduism to Islam.
Thus, the legal framing to recognize non-traditional heterosexual marriages exists in Indian jurisprudence. The time has come to extend these rights to homosexual people. Furthermore, the courts must also resolve the long-standing tensions between fundamental rights and personal laws, and rethink its position on sex and gender equality. Otherwise, they will find themselves on the wrong side of history.