UNRAVELLING THE FUNDAMENTAL RIGHT TO MARRY WITH SPECIAL REFERENCE TO SAME SEX MARRIAGE IN INDIA BY - RAGINI SINGH
UNRAVELLING
THE FUNDAMENTAL RIGHT TO MARRY WITH SPECIAL REFERENCE TO SAME SEX MARRIAGE IN
INDIA
AUTHORED BY - RAGINI SINGH[1]
1.
INTRODUCTION
“Equality means more than passing
laws. The struggle is really won in the hearts and minds of the community,
where it really counts.”
- Barbara Gittings[2]
India is a democratic country which
is inclusive of political as well as social democracy. The fundamental
principles enshrined in our Constitution which recognizes equality, liberty and
fraternity forms a union of trinity which cannot be treated as a separate items
and without divorcing them one from the other, they are the means to achieve
social democracy. Taking the word in its concrete sense, “Liberty consists in
the ability to choose”[3].
When the person’s physical frame is treated with absolute indignity in the name
of class honour, the ability to choose is crushed and a chilling effect
dominates over the brains and bones of the society at large. In the name of
class honour, howsoever perceived, the sea of liberty and the ingrained sense
of dignity under our compassionate Constitution cannot smother the choice of an
individual in exercising their choice to get married which he or she is
entitled to enjoy and this entitlement of liberty deserves to be protected and
guarded continually and zealously so that it can flourish and pave the smooth
path for liberty giving way to the new order with changing circumstances[4].
Since the adoption of the Indian Constitution, the gap between political and social
democracy can still be seen from the view point of principle of one man one
value which though gets recognition in the former case but gets actively denied
in the latter one and is purely substituted with the principle of graded
inequality. When our Constitution speaks for ‘Equality’ which derives its
existence from the golden triangle of Article 14, 19 and 21, it protects the
interest of every individuals right from all kinds of encroachment. The
unenumerated rights introduced by the apex court through its role of judicial
activism opens the gate for equal opportunities and fair justice prohibiting
arbitrary actions of the government. One such unenumerated right discovered by
the Indian Judiciary in our fundamental right under Part III of the
Constitution is the right to get marry by the person of his/her own choice.
Through its transformative and progressive jurisprudence, the Supreme Court of
India has evolved this concept in a series of landmark judgments interpreting
the marriage right under Article 21 of the Constitution. Lata Singh vs Union
of India[5] is one
of the landmark judgment of 2006 in which the apex court upheld the freedom to
choose partner under right to marriage irrespective of their caste. Another
landmark judgment is Justice KS Puttaswamy (retd) vs Union of India[6] in
which the Supreme Court in its 9 judges bench unanimously held that, within the
ambit of right to privacy is included the vital personal choices related to
marriage and dignity of an individual under Article 21 of the Constitution.
Consensually choosing life partners is guaranteed under Article 19 and Article
21 of the Constitution and except according to just and reasonable procedure
established by law, the right to marry a person of one’s own choice cannot be
curtailed[7]. By
reading down Section 377 of the Indian Penal Code, 1860, the Supreme Court
decriminalized homosexuality in the landmark verdict of Navtej Singh Johar
vs Union of India[8]. It
held that consensual and private sexual activity between adults of same sex is
not against the order of the nature and constitutes an essential part of right
to privacy. In this case, the idea of an individual’s sexual autonomy and the
concept of freedom to choose life partner was by and large based on the
decision of Shafin Jahan and Shakti Vahini earlier.
2.
RIGHT TO MARRIAGE AND INTERNATIONAL LAW
Apart from the above cited
precedents, right to marry is a human right under Universal Declaration of
Human Rights (UDHR) to which India is a signatory[9]. The
International Covenant on Civil and Political Rights (ICCPR) recognizes
and reaffirms this right under Article 23(2)[10]
as well. Having said that, though the fundamental right to marry is implied in
a series of landmark judgments of the Supreme Court backed by international
covenants, this question was never answered by the Court specifically even in
Navtej Singh Johar case, in which the Court refrained from addressing the
necessary issues such as how the rights of the homosexuals would apply in other
matters like marriage, succession, guardianship, maintenance, etc. And finally
when Court had the occasion to substantiate on this point, it unanimously
declared right to marriage as not a fundamentally guaranteed right[11]. Making
a narrow distinction it further held that the cases laid before the court as
precedents dealt with the right to choose partner and not right to marry.
3.
TRACING THE ORIGIN OF SAME-SEX MARRIAGE IN INDIA
In India, the status of same sex
marriages or civil unions is unrecognized. Homosexuality is a term taken from
the Greek word homos, meaning “the same”. As opposed to the gender identity, it
is a sexual orientation between people of the same sex. From Ancient Greece to
Rome to Victorian England, virtually every civilization since has had some
record of the presence of homosexuality right up to the present day. One of the
oldest universal social institution, Marriage in our society is viewed as a
sacred light when entered between men and women of legal age and sound mind but
when it is entered between people of same sex is considered as sacrilege on a notion
that it is an acquired trait rather than something that has been originated in
nature. Opposing this view, there are many examples of homosexual relationships
existing within the nature. Ranging from co-parenting to carnal relations, over
1000 species of animals including lions, giraffes, sheep, bonobo apes and many
species of birds according to a study show homosexual behaviours[12]. Responding
to an archaic claim of homosexuality being a mental disorder, scientific
studies have refuted such claim and propose that sexual preference is innate to
a person and an effect of various gene variants[13]. Another
contention is that, among a majority in our country it is a general opinion
that Indian religion and culture condemn and punishes homosexuality but the reality
is far from the truth. Deities having queer, homosexual and intersexual
characteristics in Hindu mythology and epics are the various prominent
examples. Unifying male and female natures, Lord Shiva is sometimes portrayed
as “Ardhanarishvara”, a half male and half female deity. Mainly worshipped in
South India, Lord Ayyappa is another prominent example who is considered to be
the son of male deities Lord Shiva and Lord Vishnu[14]. Marriage
is considered as a union of souls in Hinduism and souls are believed to not
have a gender. Because of their sexual orientation, it is very clear from these
examples that Hinduism does not discriminate between individuals. Therefore, In
India, one can trace the concept of homosexuality since the Early Vedic period or
the Rig Vedic period which dates back to 1500 BC.
4.
UNDERLYING ISSUE WITH THE SAME-SEX
MARRIAGE IN INDIA
Recently under the Hindu Marriage Act
1955, Special Marriage Act, 1954 and Foreign Marriage Act, 1969, three PIL’s
were filed demanding legalization of same sex marriage in 2020[15]. The
Centre limiting the recognition of marriage to person of opposite sex opposed
the plea on the ground of “legitimate state interest” and “societal morality”.
It seems that the concept of individual freedom embodied in the constitution by
way of the right to choose within the permissible walls of freedom is not being
allowed to be realized in the manner as it was intended. And the recent verdict
on same sex marriage in the case of Supriyo Chakraborty v Union of India[16] paves
way for further discrimination since marriage continues to be the tag for
social recognition. As the apex court has denied them the right to marry, it
would leave an impression that queer couples are “not fit for marriage”. The
miserable part is that the judgment comes from the same court which once
recognised the right of homosexuals in the famous Navtej Singh Johar case. In
Supriyo case the main issue was, if the special marriage act was
discriminatory? But the unanimity decision apart from denying LGBTQIA+ persons
right to marry under Special Marriage Act held that there is no fundamental
right to marry. Together with the homosexuals, the impact of this decision as a
precedent will affect everybody in future at large.
5.
INSTITUTIONAL LIMITATIONS OF THE COURT
LGBTQIA+[17] community
In India constitutes around 135 million people, meaning around 10% of India’s
population belong to the LGBTQIA+ community. However, due to the societal
pressure, only 2% of the population accept that they are gay[18]. On
the other hand, 53% of adult Indians are in favour of legalising same-sex
marriage according to a recent survey conducted by Pew Research Center in 2023[19]. Recently
the Supreme Court of India denied marriage right to same sex couple on the
ground that right to marry is not a fundamental right. Citing it as a
legislative function, the court unanimously agreed that it cannot grant
LGBTQIA+ community the right to marry. On question whether this court can
expand marriage laws to include queer unions was left up to the Parliament to
decide. Chief Justice DY Chandrachud reiterated that this court can only
interpret and can’t make law[20]. The
manner this court has held the right to marry is not a fundamental right raises
concerns not only in terms of its equality jurisprudence which have made a
great strides from recent historical judgments of Navtej Singh Johar case to
Joseph Shine[21] to many
more but at the same time, it definitely have created lack of consistency on
institutional limitations of the court. The quasi federal structure of India
upholds the doctrine of separation of powers in which the legislature,
executive and judiciary operates within their institutional limitations along
with check and balance system and one should not encroach upon the working of
other body. Apart from this, Article 50 of the Constitution separates the
function of the judiciary from executive which defines independency of justice
system in India. On the one hand there are cases when there was a complete
absence of law and the Supreme Court has framed guidelines[22] and
then there are cases like Supriyo vs Union of India[23] on
the other hand, where the apex court being the guardian of the constitution and
protector of fundamental rights constrained itself in terms of its
institutional limitations. Having no consistent jurisprudence, one cannot
imagine what the position of the court is going to be in the future. In today’s
time, mere discrimination on the sole basis of sexual orientation stands being
unjustified. If we compare worldwide, same-sex marriage is legal in around 36
countries out of which 25 countries legalized it through legislation, 10
countries legalized it through court decisions and 2 countries legalized it
after courts mandated them to enact legislation on the same. In Asia, Taiwan
became the first country to enact legislation on same-sex marriage in May, 2019[24]. Apart
from being a contractual relationship, marriage is a partnership which allows
partners to obtain legal advantages and privileges. Therefore, regardless of
their sexual orientation, gender identity and other grounds, the urgent need of
the hour is to provide inclusive equality to all persons overreaching
legislative enactments and judicial pronouncements. The judgment of the apex
court though refused to grant legal recognition to the non-heterosexual couples
within the ambit of Special Marriage Act 1954, the bench however was divided in
its opinion on the issue of benefits which arises out of such union.
6.
WAY FORWARD
On July 10, 2024, a five bench of
judges headed by the Chief Justice of India, D.Y. Chandrachud was set to hear
the review petitions of its October 2023 Judgment[25]
wherein the apex court refused to grant recognition of same-sex marriage right.
Considering the public interest involved in the issue, the petitioners urged the
CJI to have an open court hearing for the review petitions but the demand was
refused by the CJI. Generally the review petition[26]
of a case before the Supreme Court if accepted happens in the Judge’s chamber
through circulation. An oral hearing of the review matters however is allowed
sometimes in exceptional cases. In the present case, the review petitions have
contended that there are several grounds in which the majority judgment
contradicts itself such as[27]:
·
On
the one hand, the Constitutional bench recognised marriage as an institution
under the Special Marriage Act, 1954 conferred by the Parliament. But on the
other hand, the same court in its judgment considers status of marriage independent
of the State. And therefore the petitioners urged the apex court to allow
same-sex marriage under the 1954 Act.
·
An
adult’s fundamental right to marry cannot be curtailed by a forceful State
action or through contract and therefore emphasised marriage as a fundamental
right under its review petitions.
·
The
petitioners contended that, unless the judiciary intervenes to review its own
judgment, the ideals of equal participation, fraternity and dignity remain
fallacious for the queer community.
·
The
plea said, the majority judgment had fallen short of its constitutional
obligations towards queer couples as it was the same court which once
decriminalised homosexuality.
Queerness is not an urban, or elitist
concept which the court recognised in its 2023 judgment and for such couples, the
State has a duty to ascertain protection against all kind of atrocities. The question that divided the opinion of the
bench was how far a court can go to legalise same-sex marriage under the law
which prima facie doesn’t consider such union. The right to enter in to a union
by queer couples is a constitutionally protected right as maintained by the CJI
and Justice Kaul. And the State has an obligation to recognise such civil
unions as well as grant benefits to such couples arising out of different laws
such as right to adoption, inheritance, etc. This view was on the another hand
opposed by the other three judges of the Constitutional bench[28].
7.
CONCLUSION
The right to choose partner of one’s
own choice is very fundamental to the right to privacy which the State should
protect and denial of such right is violative of Article 14, 15, 19 and 21 of
the Constitution. There are numerous religious academics which truly considers
homosexuality in ancient Indian culture. Many people are unaware of the fact
due to the post-colonial changes which has led many to declare that such
partnerships are alien and against Indian culture. The opportunity to take part
in the marriage institution which is valued so highly in India are denied to
same-sex couples due to the absence of legal as well as social recognition of
same-sex marriage and because of this they are unable to assimilate into Indian
culture. Legalising same-sex marriage will offer certain legislative privileges
equally to homosexuals such as inheritance, maintenance, retirement rights,
financial advantages under various legislations and so on. The destruction of
the images of homosexual expression and sexual expression in general became
more systematic with the start of British colonization. The Victorian
puritanical value system got reflected in the statutes drafted and adopted
during that period in India such as Section 377[29] of
the Indian Penal Code of 1860. It has to be pointed out that all Indian individual
laws on marriage such as Hindu Marriage Act of 1955, the Indian Christian
Marriage Act of 1872, and the Shariat Act of 1937 for Muslim personal laws
seems to visualize marriage as just a hetero association. Section 4(c)[30] of
the Special Marriage Act, 1954 which recognizes legal age of marriage between
two persons as ‘male’ and ‘female’ to be altered to include a specific
arrangement so that the same-sex relational unions are allowed. The Special
Marriage Act need to be corrected to accord a similar acknowledgment to the
people belonging from different religions regardless of whether individual laws
are altered to perceive same-sex relational unions.
[1] Advocate.
[2] American activist for LGBT
equality (July 31, 1932 – February 18, 2007).
[3] Conor Cruise O’Brien, The
Anti-Politics of Simone Weil, The New York Review (May 12, 1977 Issue).
[4] Shakti Vahini v. Union of India
(2018) 7 SCC 192.
[5] 2006 (5) SCC 475.
[6] (2017) 10 SCC 1.
[7] Shafin Jahan v Ashokan K.M. [2017
(10) SCC 1].
[8] AIR 2018 SC 4321, (2018) 10 SCC 1.
[9] Article 16(1) of the UDHR, 1948.
[10] The right of men and women of
marriageable age to marry and to found a family shall be recognized.
[11] Supriyo
Chakraborty v Union of India, 2023 INSC 920, W.P.(C) No. 1011/2022 Diary
No. 36593/2022.
[12] Juanita Bawagan, Scientists
explore the evolution of animal homosexuality, Phys.org (May 2, 2009), https://phys.org/news/2019-05-scientists-explore-evolution-animal-homosexuality.html.
[13] Nicola Davis, Scientists quash
idea of single 'gay gene', The Guardian (Aug. 29, 2019, 19.00 BST), https://www.theguardian.com/science/2019/aug/29/scientists-quash-idea-of-single-gay-gene.
[14] Madhuri Shekar and Hari
Venkatachalam, Tradition: Same-Sex Marriage and Hinduism, Hinduism Today (Jan.
1, 2016), https://www.hinduismtoday.com/magazine/january-february-march-2016/2016-01-tradition-same-sex-marriage-and-hinduism/.
[15]
Mathur Aneesha, centre opposes pleas to recognise same sex marriage
under Special Marriage Act, India Today (Feb. 25, 2021, 9:03 IST), https://www.indiatoday.in/india/story/centre-opposes-pleas-to-recognise-samesex-marriage-under-special-marriage-act-1773007-2021-02-25.
[16] 2023 INSC 920.
[17] lesbian, gay, bisexual,
transgender, intersex, queer/questioning, asexual.
[18] Priyadarshini Goenka, Years after
decriminalization of homosexuality, inclusivity is still a dream for the LGBTQ
community, The Times of India (Feb. 14, 2023, 18:43 IST), https://timesofindia.indiatimes.com/readersblog/alcoholabuse/years-after-decriminalization-of-homosexuality-inclusivity-is-still-a-dream-for-the-lgbtq-community-50482/.
[20] Krutika Pathi, India’s Supreme
Court declines to legalize same-sex marriage, saying it’s up to Parliament, Pbs
News (Oct. 17, 2023, 2:43 PM EDT), https://www.pbs.org/newshour/world/indias-supreme-court-declines-to-legalize-same-sex-marriage-saying-its-up-to-parliament.
[21] Joseph Shine vs Union Of India,
2018 SC 1676.
[22] Vishakha and others v State of
Rajasthan (1997) 6 SCC 241).
[23] 2023 INSC 920.
[25] Supriyo Chakraborty v Union of
India, 2023 INSC 920.
[26] Article 137 of the Constitution.
[28] Utkarsh Anand, Same-sex marriage
review petitions: Decision delayed as SC judge recuses, Hindustan Times (July
10, 2024, 4:16 PM IST), https://www.hindustantimes.com/india-news/samesex-marriage-review-petitions-decision-delayed-as-sc-judge-recuses-101720608381267.html.
[29] Section 377 of Indian Penal Code,
1860 (45 of 1860) reads:
Of Unnatural Offences: Whoever voluntarily has carnal
intercourse against the order of nature with any man, woman or animal, shall be
punished with imprisonment for life, or imprisonment of either description or a
term which may extend to ten years, and shall also be liable to fine.
[30] The male has completed the age of
twenty-one years and the female the age of eighteen years.