Analyzing Same-Sex Marriage Vis-à-Vis Rights of Homosexuals
The decriminalization of homosexuality in Navtej Singh Johar’s case was a phenomenal step towards transformative constitutionalism in India. It has played an undeniable role in safeguarding the rights and dignity of the LGBTQ+ community. However, this community is still prone to discrimination by society and the legal system. The non-recognition of same-sex marriage in India violates the fundamental rights of the queer community. Moreover, it is against the mandate of various international conventions to which India is a signatory. This study aims to advocate that the prohibition of same-sex marriage transgresses Articles 14, 15 and 21 of the Constitution of India. Moreover, this study emphasizes the dire need for sensitization of society concerning the LGBTQ+ community to secure a dignified existence for them.
Keywords: Homosexuality; Human Rights; LGBTQ+ Community; Reformations; Same-Sex Marriage
"No two leaves are alike and yet there is no antagonism between them or between branches on which they grow." - Mahatma Gandhi
The LGBTQ+ community has faced centuries of oppression in India. The penalization of homosexuality during the British colonial rule was against the culture of ancient India where homosexuals were not considered inferior in any manner. Even, historical literary evidence indicates the prevalence of homosexuality across the Indian subcontinent. Nevertheless, the LGBTQ+ community was persecuted in the pre and post-constitutional phase of India because of Section 377 of the Indian Penal Code, 1860. This section had criminalized consensual sexual intercourse among adults of the same sex, transgressing the human rights of the queer community.
The decriminalization of homosexuality in India by the Hon’ble Supreme Court in 2018 brought a ray of hope for the LGBTQ+ community. The Hon’ble Apex Court secured the prevalence of constitutional morality over social morality by recognizing the aspirations of a minority that was subjugated by the majority on the ground of safeguarding ethical orders. However, the Supreme Court in the Navtej Johar case did not affirm the legality of same-sex marriages in India.
As of October 2021, same-sex marriage is recognized by 30 countries across the world. The Netherlands was the first country to grant marriage equality to same-sex couples in 2001. In India, same-sex marriage is illegal and the petitions seeking a declaration to recognize such marriage remain pending adjudication. The legalization of same-sex marriage is opposed in India on grounds of cultural ethos and societal morality. However, considering the issue through from the prism of Articles 14, 15 and 21 of the Constitution begets the conclusion that such marriages must be legally recognized.
Hence, vesting the LGBTQ+ community with marriage, divorce, inheritance, and adoption rights will uplift their status in society.
The core issue addressed in this study is mentioned hereunder:
Is the prohibition of same-sex marriage violative of Articles 14, 15 and 21 of the Constitution of India?
The ultimate aim of this study is to analyze the position of same-sex marriage in India vis-à-vis the constitutional jurisprudence.
NALSA & NAVTEJ JOHAR’S JUDGMENT: AN AFFIRMATIVE STEP TOWARDS TRANSFORMATIVE CONSTITUTIONALISM IN INDIA
The Supreme Court in National Legal Service Authority v. Union of India (NALSA case) has declared transgender people 'third gender.' The Court has affirmed that the fundamental rights will be equally applicable to them. The right to self-identification of their gender as male, female or transgender was granted to them. This judgment was a significant contribution of the Supreme Court towards gender equality in India. Furthermore, the decriminalization of homosexuality by the Supreme Court in Navtej Singh Johar v. Union of India was another fundamental step towards safeguarding the fundamental rights of the LBTQ+ community.
The NALSA and Navtej Johar judgments are remarkable examples of transformative constitutionalism in India. They exhibit that the Indian Constitution is a flexible social document almost revolutionary in its aim of transforming a hierarchical society into a modern, egalitarian democracy. The devotion of the Indian Judiciary towards the doctrine of constitutional morality has promoted the rights of the LGBTQ+ community. Moreover, it ensured justice for those sections who face discrimination from society or the legal system.
The High Courts of India have played a vital role in uplifting the rights of the LGBTQ+ community. The Madras High Court has directed the registration of marriage between a man and transwoman under the Hindu Marriage Act, 1956. The Hon’ble Court employed the principle enunciated in the NALSA judgment that gender identity falls within the domain of personal autonomy and involves the right to privacy and dignity. The state authorities are not authorized to question self-determination. Furthermore, the Hon’ble Uttarakhand High Court has declared that although same-sex couples are not competent to enter into wedlock, they still possess the right to live together even outside wedlock.
CONCEPTUALIZING SAME-SEX MARRIAGE IN INDIA- ISSUES AND SOLUTIONS
Same-sex marriage is defined as the marriage of two people of the same sex or gender, entered into a civil or religious ceremony. This type of marriage is not accepted in India under personal laws. Even the Special Marriage Act, 1954 and Foreign Marriage Act, 1969 do not specify any provision for such a marriage. The petition seeking a declaration that the aforementioned acts must apply to all couples regardless of their gender identity and sexual orientation is pending before the Delhi High Court. The denial of marriage rights to queer people violates the two fundamental principles of International Human Rights Law: equality and non-discrimination. The core issue regarding same-sex marriage in India is addressed underneath:
ISSUE 1: IS THE PROHIBITION OF SAME-SEX MARRIAGE VIOLATIVE OF ARTICLES 14, 15 AND 21 OF THE CONSTITUTION OF INDIA?
The prohibition of same-sex marriage is violative of Articles 14, 15 and 21 of the Constitution of India. Article 14 of the Constitution guarantees ‘equality before the law’ and ‘equal protection of the laws.’ Equality before the law’ is a negative concept implying the absence of any special privilege in favor of individuals, whereas, the ‘equal protection of the laws’ is a positive concept implying equality of treatment in equal circumstances. The marriage of same-sex couples is impermissible under personal laws and the Special Marriage Act (“which provides for registration of a special form of marriage in certain cases”). This leads to classification between same-sex marriages and heterosexual marriages, whereby only the former is prohibited. Such a classification puts homosexuals in a subordinate position and deprives them of equal status and rights, which per se violates ‘equality before the law.’ Furthermore, Article 14 forbids class-legislation, but it does not forbid reasonable classification. The classification, however, must not be ‘arbitrary, artificial or evasive’ but must be based on some real and substantial distinction bearing a just and reasonable relation to the object sought to be achieved by the legislation The ‘twin test’ of Article 14 must be satisfied for a classification to be reasonable. It has two conditions; (i) The classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped from others left out of the group. (ii) The differentia must have a rational nexus to the object sought to be achieved by the act. The prohibition on same-sex marriage has no intelligible differentia as it only bars marriage among homosexuals. The object behind this is to ensure that the marital bond should only take place between homosexuals. Therefore, this classification considers homosexuals as abnormal and deprive them of their basic fundamental rights. Hence, this classification is manifestly arbitrary and contravenes the provisions of Article 14 of the Constitution. Article 15 of the Constitution specifies that no citizen can be discriminated on the ground of sex. The equality between sexes and equal protection of gender is an emanation of Article 15. The prohibition on same-sex marriage discriminates against homosexuals on the ground of sex.
The discrimination against homosexuals based on their gender identity and sexual orientation puts them in a subordinate position, which violates the provisions of Article 15 of the Constitution.
Article 21 of the Constitution guarantees the right to life and personal liberty. The ‘right to dignity, privacy and autonomy’ are essential facets of this right. The right to privacy is an element of human dignity. The sanctity of privacy lies in its functional relationship with dignity. Privacy recognizes the autonomy of an individual and the right of every person to make essential choices that affect the course of life. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. The right to marry a person of one’s choice is a vital aspect of Article 21 of the Constitution. Therefore, the prohibition of same-sex marriage jeopardizes the right to life and personal liberty of queer people. Hence, the legalization of same-sex marriage in India is pivotal to preserve the fundamental rights of same-sex couples.
INTERNATIONAL JURISPRUDENCE REGARDING SAME-SEX MARRIAGE
Same-sex marriage was introduced across various jurisdictions of the world through the legislative or judicial process. The study of some nations which allow same-sex marriage is mentioned hereunder:
1. United States
The Supreme Court of the US in Obergefell v. Hodgesi has held that “the fundamental right of same-sex couples to marry on the same terms and conditions as opposite-sex couples is guaranteed by due process clause and equal protection clause of the fourteenth amendment of US Constitution.”
2. South Africa
The right to same-sex marriage was granted through the Minister of Home Affairs v. Fourieii in 2005. The Court ruled that the existing marriage laws violated the equality clause enshrined under Section 9 of the Constitution of South Africa because the laws discriminated against people based on sexual orientation.
Taiwan is the first country in Asia to legalize same-sex marriage. In 2017, the Constitutional Court of Taiwan granted same-sex couples the right to marry. The lawmakers in Taiwan approved a bill legalizing same-sex marriage in 2019 as directed by the Constitutional Court.
4. England and Wales
Same-sex marriage was legalized in England and Wales through the Parliament. The Marriage Act, 2013 (i.e. the legislation to allow same-sex marriage) was passed by the Parliament of the United Kingdom in July 2013.
The Swedish Parliament has adopted a gender-neutral law on marriage, legalizing same-sex marriage since May 2009.
“Denying people access to marriage ...it’s denying them the status and dignity of being ordinary citizens in society.”
The legalization of same-sex marriage in India will promote the principles of egalitarianism and rule of law. The several problems faced by same-sex couples – opening a joint bank account, buying family health insurance, etc. – will get resolved on recognition of such marriage and rights relating to marriage.
The Central Government has asserted before the Delhi High Court that same-sex marriage is against Indian culture, which requires a “biological man as a ‘husband'” and a “biological woman as a ‘wife.'” It is important to acknowledge that same-sex unions are accepted across various jurisdictions of the world to secure the human rights of same-sex couples. The right to marry a person of one’s choice is a fundamental right in India. The non-recognition of such unions offends the right to “equality, non-discrimination, life and personal liberty” of same-sex couples, which conveys disgrace to the constitutional ethos of India.
The marginalization of the LGBTQ+ community is an important issue, which adversely affects this community. According to the report of the International Commission of Jurists, the LGBTQ+ community in India faces discrimination at their family homes, workplace, and public spaces (streets, public toilets, public transport, shopping centres, etc.) This report is per se sufficient to analyze the problems of social exclusion and human rights violations against this community.
Social equality is the only basis of human happiness. Any form of discrimination against the LGBTQ+ community in the modern era is condemnable. The sensitization of society towards this community is the sine qua non to uplift their position in India. Elimination of the marginalization of homosexuals will not only benefit them; rather it will benefit the entire nation, socially and economically.
“History owes an apology to the LGBTQ+ community for the denial of rights and oppression.”
“Future owes a responsibility to guarantee them social inclusion and justice.”
List of References
1. Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
2. National Legal Service Authority v. Union of India, AIR 2014 SC 1863.
3. Arunkumar v. The Inspector-General of Registration, AIR 2019 Mad 265.
4. Madhu Bala v. State of Uttarakhand, 2020 SCC OnLine Utt 276.
5. Indian Young Lawyers Association v. The State of Kerala, (2019) 11 SCC 1.
6. Justice K.S. Puttaswamy (Retired) v. Union of India, (2019) 1 SCC 1.
7. Shafin Jahan v. Asokan K. M., AIR 2018 SC 357.
8. Vishaka v. State of Rajasthan, (1997) 6 SCC 241.
9. Obergefell v. Hodges, 576 U.S. 644 (2015).
10. Minister of Home Affairs v. Fourie,  ZACC 19.
11. South African Justice Albie Sachs in Minister of Home Affairs v. Fourie, 2006 (1) SA 524 (CC) [where statute defining marriage as ‘between one man and one woman’ was set aside.]
12. Shafin Jahan v. Asokan K. M., AIR 2018 SC 357.
This piece has been authored by Vipul Pathak.
Mr. Vipul Pathak is a penultimate year BA-LLB student at CLS, GIBS [IP University], Delhi. He is inquisitive to learn the nuances of Constitutional Law, Human Rights Law and Criminal Law. His research papers and articles have been published at various national and international platforms.