Legal Quandary Vis-à-Vis Recognition of Same-Sex Marriage in India: An Unenjoyable Recognised Right
The sufferings of the LGBTQ+ community on account of the draconian Section 377 of the Indian Penal Code, 1860 were eased by the Supreme Court’s judgment in Navtej Singh Johar v. Union of India in 2018. The Court upheld freedom of sexual orientation as a fundamental right within the organic scope of Article 21 of the Indian Constitution. The judgment also touches upon the doctrine of the progressive realisation of rights which essentially includes the right to choose an association (referring to the marital association). However, the ongoing outcry over the recognition of same-sex marriage in India depicts an altogether adverse scenario wherein the LGBTQ+ community has again been pushed behind the invisible bars devoid of their basic human rights; the very bedrock on which such deprivation is being premised refers to the majoritarian public morality. This article is an attempt to examine the legal position of this issue in the light of the Johar judgment. The authors argue as to why there is an urgent need to recognise same-sex marriages in India which undoubtedly relates to the regularisation of rights. The authors further put forth the relevance of public and constitutional morality to argue that public morality has to exist in conformity with the latter. Lastly, this article touches upon the idea of India as a welfare state which cannot uphold what is constitutionally illegitimate and impermissible.
Keywords: LGBTQ+, Same-Sex Marriage, Constitution, Rights, Recognition, Welfare State
Equality, liberty, justice, and dignity once denied can never be compensated with any sort of reparations. The ongoing debate before the Supreme Court of India indicates one such situation wherein the LGBTQ+ community is again contesting for its legitimate rights. The right to marry according to one’s choice is one of those natural rights which the state is called upon to protect and promote. However, in India, the contemporary developments depict the LGBTQ+ community struggling to get this right recognised. The discussion on the present issue would be futile without references to the concepts of society, state, and the law. Therefore, this paper is an inclusive attempt to understand the problem of recognising same-sex marriage in India. The deep-rooted discriminations in the context of sex and gender are intertwined in the organic fabric of Indian society. However, the much larger issue lies with the Indian state which is bound to follow what the law provides.
To clearly understand the issue at hand, this article is divided into four sections—firstly, the article discusses the very point of recognition of the freedom of sexual orientation as a fundamental right by the Court in 2018; how this judgment remains important in today’s fight for the recognition of same-sex marriage in India. Secondly, the authors delve into understanding the ongoing struggle between the stands of law, society, and the state by exploring the concepts of constitutional morality and public morality. Thirdly, the concept of a welfare state and its role towards its people is examined to find how India, as a welfare state, is failing in its duty to uphold the rights of the people. Lastly, the article is concluded by arguing that the present legal battle before the Court is likely to follow the principles of constitutional morality by upholding the civil right to marry same-sex couples. The authors also emphasizes the duty of the state which is to nourish the roots of the Constitution, law, and the natural rights of the people because of whom it exists.
2. SAME-SEX MARRIAGE IN INDIA: RELEVANCE OF THE SUPREME COURT’S VERDICT IN NAVTEJ SINGH JOHAR
India’s ongoing discourse regarding the recognition of same-sex marriage is incomplete without a reference to the Court’s celebrated judgment in Navtej Singh Johar v. Union of India (hereinafter, “Johar”). (1) It was in 2018 that the five-judge constitution bench of the Court, while reversing the judgment of Suresh Kumar Koushal v. Naz Foundation, unanimously read down Section 377 of the Indian Penal Code, 1860 (hereinafter as “the Code”) which criminalised the sexual activity of two consensual adults of the same sex and other offences, (2) categorising them as ‘unnatural’. (3)
The decision in Johar invalidated the oppressive nature of Section 377 of the Code and by invoking the doctrine of transformative constitutionalism (4), cemented the very cornerstone on which the fundamental human rights of equality, justice, liberty, and dignity stand.
· Position & Relevance of Section 377 after Johar
As stated above, the decision of the Court in Johar rightfully re-affirmed and endorsed the legitimate rights of LGBTQ+ community and observed that:
“Our Constitution fosters and strengthens the spirit of equality and envisions a society where every person enjoys equal rights which enable him/her to grow and realize his/her potential as an individual.” (5)
The observation of the Court is important to understand the interrelation of the enjoyment of equal rights and the realisation of individual potencies. Emphasising on the same note, the Court while reading down Section 377 also projected its focus on the ever-evolving nature of the Constitution. As far as the understanding of the doctrine of progressive realisation of rights is concerned, (6) the Court highlighted its duty of being the guardian of the Constitution (7) and most essentially of fundamental rights. The Court further emphasised the organic interpretation of the fundamental rights. (8)
Furthermore, the Court, in its judgment, concluded Section 377 to be violative to the extent that it applies to consenting adults and held that:
Section 377 insofar as it criminalises voluntary sexual relations between LGBT persons of the same sex in private, discriminates against them on the basis of their “sexual orientation” which is violative of their fundamental rights guaranteed by Articles 14, 19, and 21 of the Constitution. (9)
These observations of the Court indicate that the people engaged in same-sex relationships have similar rights to their counterparts. Consequently, the illegality of same-sex marriage will deprive the LGBTQ+ community of the legal and social protection which is available to the heterosexual couples. (10) Therefore, an important question that arises at this juncture relates to the regulation of the marital bond of LGBTQ+ community- Why should they be deprived of their civil right to marry as per their choice? Is such a denial not violative of Articles, 14, 19, and 21 of the Constitution?
3. URGENT NEED TO RECOGNISE SAME-SEX MARRIAGE IN INDIA: PROBLEMATISING THE ONGOING DEVELOPMENTS
The recognition of same-sex marriage in India will not only help the LGBTQ+ community realise their rights but will also benefit the state machinery for better implementation and enforcement of legal rights arising out of their marital obligations; whereas in the absence of such recognition, the community will lack locus standi for enforcement of their legitimate rights. However, the ongoing discourse on the recognition of same-sex marriages in India indicate a rift between two kinds of morality – public and constitutional morality. Therefore, it becomes apposite to problematise the two.
· Public Morality v. Constitutional Morality
At this juncture, it is pertinent to understand the contours of the concept of morality as far as the Indian Constitution and society are concerned. For an effective understanding of the concept of morality, a few questions can be raised, be it regarding the definitional structure or the relationship between constitutional and public (also referred to as social) morality.
To begin with, let us first delve into the definitional understanding of the term “morality”. Morality, according to Black’s Law Dictionary, is defined as “conformity with recognized rules of correct conduct”. (11) A legitimate question as to who recognises these rules is to be raised here. To answer this, the argument of Georges Ripert can be called upon here which states that morality includes the principles of good, justice, righteousness, etc. as fundamental values which are preserved, promoted, and protected by the law. (12) Therefore, can it be argued that only the righteous principles which are upheld by the legal principles form the part of morality? However, if this proposition is accepted then the idea of public morality will be completely ignored as Del Vecchio argues that the moral constitutes subjective ethics. (13)
It is, hence, required to understand the idea of public and legal (in our sense, the constitutional) morality. Public morality largely constitutes “the ideals or general moral beliefs of a society” or “the ideals or actions of an individual to the extent that they affect others.” (14)
Constitutional – or legal – morality, on the other hand, is defined by the Court in Manoj Narula v. Union of India:
“The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner.”
The understanding of public morality refers to the general beliefs of a society, whereas, constitutional morality has elements of the rule of law (15) and the unarbitrary fashion to act. Further, the Court has also cemented this distinction in several decisions (16) including Johar, and observed the following:
“Constitutional morality embraces within its sphere several virtues, foremost of them being the espousal of a pluralistic and inclusive society. The concept of constitutional morality urges the organs of the State, including the Judiciary, to preserve the heterogeneous nature of the society and to curb any attempt by the majority to usurp the rights and freedoms of a smaller or minuscule section of the populace. Constitutional morality cannot be martyred at the altar of social morality and it is only constitutional morality that can be allowed to permeate into the Rule of Law. The veil of social morality cannot be used to violate fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades the society.” (17)
The Court’s conclusion is clear and evident of the fact that the majoritarian outlook is liable to be rejected given the principles of constitutional morality. However, the contemporary debates concerning the recognition of same-sex marriage in India showcase developments favouring public morality. The ongoing tussle before the Delhi High Court for such recognition invited an unsustainable approach of the central government wherein it, in the name of public morality, is contending against the right to recognition of same-sex marriages in India. The centre has argued about the legitimate state interest involved in limiting same-sex relationships outside the marital bond as the institution of marriage in India does not allow for it.
Advocating against this right, the centre even submitted before the Delhi High Court that people will not die if they are not given a marriage certificate. Such an approach conforms to the majoritarian view of Indian society which represents the public morality devoid of the element of constitutional morality. What is important to know is that the public morality which runs against the constitutional morality cannot survive in a civil society for the protection, preservation and promotion of the rights. (18)
4. ROLE OF THE WELFARE STATE
The discussion on the issue of recognition of same-sex marriages in India tends to remain incomplete without a reference to the concept of the welfare state and its role. First and foremost, it is the preamble to the Constitution that declares India to be a welfare state which is committed to securing justice, liberty, and equality for the people and promoting the dignity of an individual. Moreover, a cursory look at the provisions of Part IV of the Constitution provides us with a clear understanding of the mandate of the Constituent Assembly—that is to make India a welfare state. (19) It is imperative to understand that the public power (in our sense, the lawmakers or the representatives) in a welfare state acts as a medium to achieve purposes beyond domestic order and national defence. (20) It thereby signifies the achievement of a progressive society in the sense of the aforementioned features of the Constitution.
Article 38 (1) of the Constitution inculcates the idea of securing social order for the promotion of the welfare of the people, to achieve which, the state shall strive to lessen the existing inequalities as far as the status, facilities, and opportunities are concerned. Furthermore, Article 51 (c) encapsulates that the state shall endeavour to foster respect for international law and treaty obligations in the dealings of organised people with one another.
The idea imagined under these provisions casts a positive duty on the part of the state to perform its obligations towards all the citizens without any discrimination. Though the provisions in Part IV are not enforceable (Article 37) in the court of law, the state is nevertheless bound to implement and achieve these to fulfil the requirement of being a welfare state. (21) Without recognising the right to same-sex marriage, the Indian state cannot fulfil the requirement of reducing inequality under Article 38. Furthermore, the obligation under Article 51 (c) will remain incomplete unless India implements the provisions of the International Covenant on Civil and Political Rights (ICCPR), 1966, the International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966—covenants to which India is party, and the Universal Declaration of Human Rights (UDHR), 1948.
Therefore, it is well established that India, to fulfil its national and international obligations, must perform positively by upholding the legitimate principles of welfare. Additionally, the judiciary being one of the pillars of the state and the guardian of the Constitution (22) must also come to the rescue of this section of the society like it set an example in the Johar judgment.
5. CONCLUSION: A WAY FORWARD
The way forward, if there is any, lies only in upholding the equal rights of the LGBTQ+ community in India. The state, which essentially is the creation of its people, must not deviate from its primary obligation to impartially protect and promote the rights of its people. The state as it consists of majority and minority groups must always apply the principles of the rule of law and the Constitution and refrain from diverting its obligations specifically towards a particular section of society. The Indian state, therefore, is urgently required to revisit the norms of Constitutional morality and engage in upholding them.
In order to uphold the principles laid down in various judgments of the Court and further the Constitutional provisions & international obligations, the state must immediately assume its role in affirming the rights of LGBTQ+ community. Moreover, as discussed in this paper, the state should not conform to the notions of public morality which is devoid of the essence of Constitutional morality as the same is destined to succumb before the latter. Hence, what is required on the part of the Indian welfare state is that the natural rights, including t he right to same-sex marriage, of the LGBTQ+ community must be acknowledged & protected and the verdict of the Court in Johar be given life.
1. (2018) 1 SCC 791.
2. Other offences include non-peno-vaginal sexual acts between two consenting adults of opposite sex, bestiality (sexual acts with animals etc.).
3. To define the term ‘unnatural’, a reference can be made to Khanu v. Emperor, (AIR 1925 Sind 286): it was held that “the natural object of carnal intercourse is that there should be the possibility of conception of human beings . . .”. It therefore suggests that to procreate is the only natural object of sexual intercourse.
4. Supra note 1, 253 (iv) (per Dipak Misra & A. M. Khanwilkar, JJ.) & 144 (per D. Y. Chandrachud, J.).
5. Id., 86.
6. Id., 178.
7. Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441.
8. Id., 183-184.
9. Id., 19 (i) (per Indu Malhotra, J.).
10. Shraddha Chaudhary, Navtej Johar v. Union of India: Love in Legal Reasoning, 12 (3-4) NUJS L. REV. 14 (2019).
11. BLACK’S LAW DICTIONARY 1100 (9th ed. 2009).
12. GEORGES RIPERT, LA REGLE MORALE DANS LES OBLIGATIONS CIVILES (Librairie Générale de Droit et de Jurisprudence, Paris, 1927).
13. GIORGIO DEL VECCHIO, LESSONS OF LEGAL PHILOSOPHY (Europa Nova Publishing House, 1993).
14. Supra note 11.
15. Ricardo Gosalbo-Bono, The Significance of the Rule of Law and Its Implications for the European Union and the United States, 72 UNIV. PITTSBG. L. REV. 229, 231 (2010).
16. Such as in Joseph Shine v. Union of India and Indian Young Lawyers Association v. The State of Kerala. 17. Supra note 1, 253 (v) (per Dipak Misra & A. M. Khanwilkar, JJ.).
18. Supra note 1, 144 (per Dr. D. Y. Chandrachud, J. observed that, “Popular public morality cannot affect the decisions of this Court.”).
19. PARAS DIWAN, ADMINISTRATIVE LAW 124 (Allahabad Law Agency) 2004).
20. Harry W. Jones, The Rule of Law and the Welfare State, 58 (2) COL. L. REV. 143, 153 (1958).
21. Sir Benegal Narsing Rau during the Constituent Assembly Debates observed that the principles enshrined in the Directive Principles of State Policy are fundamental in the law making; for a detailed discussion, refer 2 SHIVA RAO B., THE FRAMING OF INDIA’S CONSTITUTION: A STUDY 1-234 (Universal Law Publishing, 2015).
22. National Legal Services Authority v. Union of India and others, (2014) 5 SCC 438.
This piece has been authored by Divyanshu Chaudhary and Nitin Singhroy.
Divyanshu Chaudhary is a Ph.D. Scholar from Gujarat National Law University. The author may be reached at email@example.com.
Nitin Singhroy is a second-year law student pursuing his B.A. L.L.B. at Geeta Institute of Law, affiliated to Kurukshetra University. The co-author may be reached at firstname.lastname@example.org.
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