Same-Sex Marriage: Constitution is Ready But Are Courts & Society?

The question isn’t whether homosexuals have right to marry but if there exists an intent to make it possible.

The petitions for a right to marriage filed before the Delhi High Court have again highlighted the intersecting paths of societal morality and constitutional morality. Image used for representation.

(Photo: The Quint)

(This article was first published on 19 November 2020. It has been republished from The Quint's archives in the run-up to the third anniversary of the decriminalisation of homosexuality in India on 6 September.)

“Certain changes transpire with time without the court’s intervention however, it is upon the courts to accommodate such changes and protect that right to change.”

India’s journey towards recognition of rights of the LGBTQIA+ is marked with the landmark judgments of NALSA, Naz Foundation and Navtej Singh Johar but there still is a long way to go as far as equality in substance and fact is concerned.

The petitions for a right to marriage filed before the Delhi High Court have again highlighted the intersecting paths of societal morality and constitutional morality.

They could well turn out to be India’s version of the Obergefell v Hodges case in the US – where the Supreme Court recognised the right of same-sex couples to marriage – and perhaps may be even more significant in India given the way marriage is viewed in our country.

Despite Navtej Singh Johar (the Section 377 case), marriage in India continues to retain its moral and cultural origins in which lies the deeply rooted idea of heterosexual exclusivity of marriage where homosexuals are at best offered a mediated solution of “live-in.”

This narrow view of marriage as a concept is often propped up using arguments about inheritance rights and personal laws, which are presented as hurdles to recognise spousal rights of homosexuals.

However, such a myopic view of marriage and its grounding in personal laws has resulted in attribution of a religious character to a union which, in modern India, has acquired a more secular and legal outlook.

This isn’t just a matter of opinion or perspective, but a technical point. Spousal rights are an outcome of a legally recognised union and in India today, there indeed is no foundational legal requirement for such union to be exclusively heterosexual.

It has been argued by some that the Supreme Court, while delivering its verdict reading down Section 377, has very carefully denied any pronouncement conferring a right of marriage on homosexual couples.

However, the text of the judgment shows that this isn’t quite so cut and dried. Take for instance these words by the then Chief Justice of India Dipak Misra in his opinion at para 155 where after an analysis of the right to privacy, he said:

“There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union.”

So, Did the SC Pave the Way for Recognition of Same-Sex Marriages?

CJI Misra’s opinion highlights that a ‘union’ is a manner of companionship in every sense be it physical, mental, sexual or emotional, which applies to all citizens – which appears to recognise the right of the LGBT community to consensual companionship.

In the light of this, those harping on Navtej Singh Johar as exclusively Section 377-oriented should reconsider their stance as the apex court did not actually remain entirely silent on this point.

Given the canons of judicial interpretation, it seems like they were paving a way for its recognition.

Marriage is this one phenomenon, which indeed has legal recognition and incidents but not a legal definition. Even the personal laws defining the manner and requisites for a valid marriage don’t define marriage itself. Hence, these requisites in themselves are seen as marriage.

For example, the Hindu Marriage Act under Section 5 lays down conditions for a valid marriage between two Hindus. In absence of definition what then has led to the assumption that marriage is indeed a union of male and a female alone? The answer more likely will be customs on the basis of which personal laws are formed.

India Has Deviated From ‘Customs’ to Recognise Marriage

However, the Indian legal jurisprudence around marriage seems to have taken the liberty to deviate from customs to recognise marriages which per se have no customary recognition through the Special Marriage Act, 1954.

This Act also doesn’t define marriage and does away with the requirement/condition that two individuals getting married must belong to same religion.

Homogeneity of religion is an inherent requirement of marriage as per the customs and the personal laws, which was superseded by the constitutional morality to uphold secularism and personal liberty.

This has in a way paved a path to the conclusion that conditions of marriage in themselves, embedded in the personal laws or customs, aren’t the only means of recognition of marriage as a legal union. For if so, removal of the condition of homogenous religion for marriage from the Special Marriage Act, would have rendered the unions legally valid but short of marriage.

Hence, the legislature by way of making a law can choose to recognise certain unions as marriages even if they aren’t originating customarily. To put it simply and illustratively, conditions for a valid contract and what is a contract don’t have same answers as, the former is derived from Section 10 while the latter is defined u/s 2(h) of the Indian Contract Act, 1872.

Conditions are a requisite to establish validity and not define the nature of the subject-matter in question.

Social Constructs Should Be Seen Evolving, Dynamic

The theory of social constructionism views marriage as an evolving, dynamic, social institution without rigid essential characteristics. In India, from abolition of child marriages to acceptance of inter-caste and interfaith marriages trace that evolution.

The prohibition was embedded in the argument of “essentialism of marriage” as defined by State along with the power dynamics into play which allowed oppression of the weaker whether it was women, minority or backward classes.

In Loving vs Virginia, the US Supreme Court upheld interracial marriages recognising marriage as a civil right, denying the argument that god didn’t intend mixture of race by marriage.

It’s important to untangle the civil right of marriage from marriage as a means for exclusion, oppression and acting as moral authoritarian regime for the State.

‘Marriage Must Be Seen as Legal Union’

My next argument is based on the premise that, spousal rights are an outcome of a legally recognised union, and marriage must primarily be seen as a legal union subsequently acquiring its personal/religious colour.

In a society governed by rule of law and upholding constitutional morality, to have a legally recognised right ie right to choose a partner of own choice being governed by social dictates of morality seems rather oxymoronic.

The Supreme Court in its Hadiya judgment has unequivocally expressed that, social values and morals have their own space but aren’t above the constitutionally guaranteed freedom. Exercising a choice contrary to religious morality isn’t suppression of any religious beliefs rather accommodation of individuals in a pluralist society. However, to deny it solely on customary/religious ground would amount to subsuming religious/personal moral code of few into the constitutional morality governing the rest.

The judgment of Puttaswamy and Navtej Singh Johar along with other judicial pronouncements like the Hadiya judgment weave a beautiful legal tapestry within which lies the right to marriage as form of legal union under Article 21.

• India is a free and democratic country where a person upon becoming a major can marry whosoever he/she likes.
• To choose a life partner is an absolute right of an individual forming essence of personal liberty under the Constitution. Personal liberty is protected from disapproving audiences. Choices of whom to marry or whether to marry or not lie outside State control.
• Ability to make decisions on matters close to one’s life is an inviolable aspect of the human personality and it includes decisions on vital matters like the family, marriage, procreation and sexual orientation all being integral to individual dignity.
• Justice Nariman’s words in Puttaswamy summarise it as, privacy encompasses interests pertaining to the physical realm and the mind. Privacy in India has evolved across judicial precedents from mere right to be left alone to recognition of larger privacy interests including individuals’ choices of abortion, right of same-sex couples including their right to marriage, procreation etc. Three aspects of privacy include person/body, informational and privacy of choice.

Should Agnostics Be Denied the Right to Marry?

Furthermore, marriage offers a number of other legal recognitions and benefits like nomination in insurance, gratuity, pension where spouses are entitled to receive the benefit post death/disability of the other spouse.

When marriage gives certain rights/benefits to the spouse and even certain obligations, to only view it as a religious/customary institution would be untenable.

Arguing that marriage has origins in religious customs thus, can solely be governed by personal laws creates an anomalous situation for those individuals identifying themselves as agnostics or atheists having no religious affiliations.

Should such individuals be denied right to marry? If not then recognition of such marriage is governed by secular laws of the land and not only personal laws making it sacramental.

In Obergefell vs Hodges, the US Supreme Court has succinctly highlighted the religious, historic, sociocultural and legal landscapes that marriage traverses, however after reading right to marriage as an aspect of autonomy and liberty, no individual could have been denied it without due process.

Article 21 of the Indian Constitution has been interpreted to guarantee the right to choose a partner within or outside of marriage as exclusive domain of individual autonomy in Hadiya’s case.

In Puttaswamy, the court has recognised marriage, procreation, family as part of privacy of an individual.

Legal Blackhold of Denying Queer Community the Right to Marry

Denying it to LGBTQIA+ community would result in a legal blackhole where:

• Denial of marriage on the ground of traditional roles envisaged in marriage as husband and wife can’t be attributed to same-sex couples would inevitably foster a discrimination based on sex (especially against women) perpetuating patriarchal stereotypes of sex-based roles where women can’t be the head of the family/bread-winners and men can’t be seen as care-givers. Such discrimination is prohibited under Article 15 of the Constitution.
• Absence of legislation to govern legal incidents of a same-sex marriage can be no ground to deny the right as rights under Art 21 are inherent and not conferred and State is obligated to protect the same. Vishakha case is a precedent establishing that absence of legislation isn’t a judicial fetter for recognition of a right.

• The argument that no legislation envisages same-sex marriage as the same wasn’t historically evident is argued as both reason and cause of non-recognition of same-sex marriage making it a circular-argument.
• No condition of validity for marriage in law requires it to be between a man and woman hence, to deny the right to same-sex couples to marry would be reading into it a condition absent in law by relying on a “definition” of marriage which is non-existent and derived solely out of perceived notions of societal morality
• To deny recognition/right to marry to same-sex couples will be to recognise their identity/individuality as homosexuals but not choices born out of their individuality which in effect reduces their identities to mere paper towns.

Hence, the real question isn’t whether homosexuals have right to marry but whether there exists a legislative intent to accommodate the legal incidents of such right either in the existing or through separate legal framework.

To deny the right to marriage or to suggest that Navtej Singh Johar doesn’t provide basis for claiming such a right is to argue that only “qualified individual autonomy of homosexuals” was recognised by the Supreme Court.

The cage was opened with the liberty to keep only one foot outside while the other remained caught between the bars. Such argument simply fails to stand the test of legality.

India is now standing at a juncture of deliberation where, the question posed to its Courts and society in the words of Surabh Kirpal is “India’s Constitution is ready for gay marriage. Are India’s society and courts?”

(The author is pursuing law at Symbiosis Law School, Pune. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)