Kanav N Sahgal

In this piece, Kanav N Sahgal responds to Professors G.S. Bajpai and Ankit Kaushik’s arguments against judicial intervention on the issue of same sex marriage. He argues why the court, and not the parliament, is the appropriate forum to decide the issue.  

Introduction

With the start of the hearings on same-sex marriage, supporters and opponents alike are eagerly awaiting to see which way the Court will ultimately lean. This highly debated topic has been the subject of much discussion and controversy, and the outcome of these hearings will have a significant impact on the future of LGBTQ+ rights in India. Close to 15 petitions have been clubbed, each demanding legal recognition of same-sex marriages under various marriage laws, including the Hindu Marriage Act (1955), Foreign Marriage Act (1969), Special Marriage Act (1954), Citizenship Act (1955), and others, on the grounds that they are violative of Articles 14, 15, 19, and 21 of the Indian Constitution. It will, however, be noted that the Supreme Court of India has clarified that the ruling will not impact existing personal laws regarding marriage. Instead, the court will only assess the constitutionality of same-sex marriage under the Special Marriage Act, which permits the marriage of any two individuals regardless of their religion or caste.

Although support for the legalization of same-sex marriage has come from a range of scholars, activists, lawyers, professional organizations, and the LGBTQ+ community, it is not without its detractors. Recently, 21 retired high court justices released an open letter urging the Supreme Court of India not to legalize same-sex marriage. However, their arguments were rife with misinformation, bigotry, and unscientific claims.

Recently, legal scholars: Professor G.S. Bajpai, Chairperson of the Centre for Criminology and Victimology at the National Law University Delhi, and Ankit Kaushik, a Research Associate at the same university, presented four arguments in favor of leaving the issue of same-sex marriage to the Parliament rather than the judiciary. Firstly, they argued that marriage is a social institution with social implications, and thus should be deliberated at a societal level before being considered in courts. Secondly, they pointed out that India’s complex legal structure for marriages, which has religious origins, and even the secular Special Marriage Act, which has heteronormative legislative intent, cannot be assumed to automatically include same-sex couples. Thirdly, they noted that various Indian laws regarding marriage mandate consummation and procreation, which same-sex couples cannot do, making same-sex marriages voidable. Lastly, they compared same-sex marriages to live-in relationships, which are judicially recognized but do not have the same legal status as heterosexual marriages due to lacking social acceptability. In sum, the authors believe that the issue require broader debate in society and the legislature, rather than simply being treated as a matter of “rights”.

Despite their persuasive nature, Bajpai and Kaushik’s arguments lack a substantial, empirical, and historical understanding of why leaving the decision of same-sex marriage to the Parliament would be insufficient.

Concern 1: Marriage as a Social Institution and not a “Private Issue”

In an affidavit countering the petitioners’ claims to recognize same-sex marriage, the Union Government highlighted that marriage is not just a matter of privacy between two individuals of the same sex. Rather, it is a social institution and a public concept that comes with a range of rights, obligations, and legal considerations, such as divorce, alimony, and adoption. While it is true that Article 245 of the Constitution of India grants the Parliament of India exclusive power to make laws for the entire or any part of the Indian Territory, such laws must be subject to the provisions of the Constitution. So, if the Supreme Court of India determines that denying same-sex couples the right to marry violates the Constitution, then it will be the responsibility of the legislature to rectify this wrong by taking action to legalize same-sex marriage through amendments to India’s relevant marriage laws. It is incorrect for Bajpai and Kaushik to insist on a societal-level deliberation on the matter one, because the deliberation is already taking place in the court, and two, because recent data shows that public acceptance of homosexuality (not necessarily same-sex marriage) is still low even after the landmark Navtej verdict – and this is largely due to prejudice, bias, and stigma, which are in no way the fault of the LGBTQ+ community.

Furthermore, the belief that any modification in the law concerning same-sex marriage should come only from the legislature is positivistic and does not conform to India’s legal tradition. In the Indian legal system – which is a continuation of the common law system – judges, and not only legislators, have been charged with the responsibility of keeping law abreast of current social conditions and expectations. The Indian Constitution, as a transformative document, gives the judges the responsibility of interpreting the law and ensuring that it matches the country’s social conditions and expectations to support the most vulnerable members of society. Although marriage is typically a topic that Parliament would legislate on, individuals can seek constitutional remedies by appealing to the Supreme Court directly under Article 32 of the Indian Constitution if their fundamental rights are breached. Therefore, it is not accurate to argue that the judiciary does not possess the authority to handle issues regarding marriage, including same-sex marriage. If same-sex marriage is discovered to be in violation of fundamental rights, as the petitioners claim, it is fitting for the Supreme Court to provide the petitioners with a redressal/remedy.

Concern 2: On the Legislative Intent of India’s Existing Marriage Laws

In a landmark ruling on abortion last year (X vs Principal Secretary, Health and Family Welfare Department, Govt of NCT Of Delhi, 2022), the Supreme Court of India adopted a purposive interpretation of Rule 3B(c) of the Medical Termination of Pregnancy (MTP) Rules 2021, allowing for abortion up to 24 weeks for unmarried women who experience a change in their relationship status during an ongoing pregnancy. The Court clarified that “women” in the Medical Termination of Pregnancy Act included individuals other than cis-gender women who may require safe medical termination of their pregnancies. The original 1971 Medical Termination of Pregnancy Act did not consider anyone other than a biological woman capable of giving birth. The Court also ruled that Rule 3B(c) should include unmarried women, despite the use of the term “marital status,” (implying that only certain married women would be allowed MTP’s up to 24 weeks of pregnancy) as not doing so would not fulfill the basic purpose and object sought by Parliament through the Medical Termination of Pregnancy Act.

Coming back to the issue of same-sex marriage, at the time of framing India’s personal laws, Section 377 of the Indian Penal Code criminalized private and consensual same-sex relationships by labelling them as “against the order of nature” ; the Indian Psychiatric Association had not yet deliberated on whether homosexuality was a mental illness. But in light of decisions like National Legal Services Authority v. Union of India (2014) and Navtej Singh Johar v. Union of India (2018), the courts and civil society have now recognized a historical wrong- that queerness is in fact natural, normal, and an innate part of one’s identity. These developments have led the Supreme Court to redefine “woman” in the 2022 abortion ruling and the Madras High Court to redefine “bride” under Section 5 of the Hindu Marriage Act to include transgender women in Arun Kumar versus Inspector General of Registration (2019) – thereby legalizing cis-trans marriages.

In light of these new developments, it is crucial to go back to what the Court said in Navtej, namely that accepting the view erroneously set in Suresh Kumar Koushal vs. Naz Foundation (2013)  “would tantamount to a retrograde step in the direction of the progressive interpretation of the Constitution and denial of progressive realization of rights.” Legislative intent, therefore, must be seen in light of the evolution of science, psychiatry, and sociological evidence regarding the meaning of family and gender.

Therefore, to argue that the legislative intent of India’s existing marriage laws, including the Special Marriage Act (1954), is heteronormative and must therefore remain unchanged, is to ignore the social realities that have evolved since 1954. As clarified in Navtej, the Fundamental Rights guaranteed under our Constitution are “dynamic and timeless”, and to give a “static interpretation” to the rights of “liberty” and “equality” would go against the very principles of the Constitution, which itself recognizes the transformative and evolving nature of rights.

Concern 3: Procreation and Consummation as essential to a valid a marriage

Section 12 of the Hindu Marriage Act (1955) allows for a marriage to be voidable if it has not been consummated due to the impotency of one party. However, same-sex couples are also able to consummate. For gay couples, consummation can occur through various means, including anal and oral sex, while for lesbian couples, it could involve techniques such as oral sex, fingering, and the use of sex toys. The assumption that “consummation” only involves penile-vaginal intercourse is empirically incorrect. Furthermore, the requirement of procreation for marriage is an outdated and discriminatory concept. This standard is not uniformly enforced across marriages. Moreover, given medical and scientific advancements, same-sex couples can now conceive and raise children through methods such as surrogacy and IVF treatments. Therefore, to deny same-sex couples the right to marry on the basis of their supposed inability to consummate a marriage or procreate is unfounded.

Additionally, it is important to recognize that marriage is not solely about sex or procreation. It is a union based on love, commitment, and mutual respect. All individuals, regardless of their sexual orientation, should have the right to choose their life partner and have their union recognized and protected by law- irrespective of the choice to bear a child or not. Thus, denying same-sex couples the right to marry by emphasizing that procreation is a basic requirement of marriage is also insensitive to the reality of heterosexual couples who face infertility or sexual dysfunctions, and those who choose not to procreate for personal or economic reasons.

Concern 4: On the equivalency of live-in relationships with same-sex marriages

Bajpai and Kaushik compare the legal status of heterosexual live-in relationships with those of same-sex relationships. While both exist in a state of legal limbo, the authors argue that heterosexual live-in couples are recognized under judicial precedents but are not equated with heterosexual marriage. However, the comparison between heterosexual live-in relationships with same-sex relationships is itself a false equivalence. While it is true that heterosexual live-in couples do not enjoy the same rights as heterosexual married couples, they were never criminalized under the law nor considered mentally ill by the medical community merely because of their sexual orientation.

Furthermore, while the lived experiences of some inter-caste, inter-religious, and sometimes same-caste and same-religion live-in couples may at times parallel the stigma faced by same-sex couples, not all heterosexual live-in couples face stigma owing to choice of their partner. The reaction of society to the choice of one’s heterosexual partner compared to one’s homosexual or transgender partner is vastly different, given the unique history of oppression and violence that LGBTQ+ people face for simply existing and being who they are.

Finally, it is important to note that heterosexual married couples have the choice to legalize their marriage if they wish to, whereas that option remains closed to same-sex couples. The evolution of family structures should be a natural and positive process, and the legal recognition of same-sex marriage would simply extend the rights and protections afforded to other similarly situated heterosexual couples seeking the right to marry.

A Moral Argument for Same-Sex Marriage: Denial of Right to Marry Amounts to ‘Aggression’ by State

Opponents argue that legalizing same-sex marriage would have a significant social, cultural, and legal impact, affecting several laws such as adoption, criminal law related to sexual offenses, immigration laws, employee benefit laws, and other related laws. They contend that due to the consequentialist nature of such changes, judges may not be qualified to make decisions on same-sex marriage, as it would have a far-reaching impact on India’s existing legal framework. The legislative authority, subject to democratic accountability is, by its very nature, better suited to make such a decision.

While it is important to address the concerns raised by opponents of legalizing same-sex marriage, it should be noted that these issues are not insurmountable. By extending the scope of protection to include same-sex couples just as they have existed for heterosexual couples for generations and adopting gender-neutral language wherever appropriate, all of these issues can be adequately addressed. It is worth remembering that India is not the first country to consider legalizing same-sex marriage through the courts and amending ancillary laws to accommodate LGBTQ+ people’s rights.

Furthermore, the fundamental issue at stake in this case is the basic right to equality and non-discrimination, which are inalienable rights for all citizens of India. These rights should not be held hostage to potential social and legal outcomes, all of which can be addressed by taking appropriate measures to ensure the protection and recognition of same-sex couples.

In Anarchy, State, and Utopia (1974), political philosopher Robert Nozick argued that all individuals possess inherent rights that must be respected by others and the state. He emphasized that the state has a monopoly on the use of force because it claims to protect everyone within its jurisdiction. In the context of same-sex marriage, Nozick’s framework suggests that the state’s denial of the right to marry the person of one’s choosing is a violation of individual rights. The state cannot deny individuals the freedom to enter into consensual relationships without violating their rights. Denying same-sex couples the right to marry, thus, tantamounts to a form of ‘aggression’ by the state, and goes against the principles of individual rights and freedom that Nozick espouses. This was more apparent in Navtej, where the state, rather ironically, upheld the criminality of consenting same-sex adults on grounds of “immorality” and violated individual rights. The Supreme Court of India recognized this violation and struck down the law, recognizing the importance of individual rights and freedom. In that light, the state’s denial of same-sex marriage is a violation of individual rights, or as Nozick puts it ‘aggression by the state’, and should be overturned in favor of a just and fair society that respects and upholds the principles of individual rights and freedom.

Conclusion

In her concurring opinion in Navtej, Justice Indu Malhotra stated that “a classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand the test of constitutional morality.” Each of the arguments put forth by opponents of same-sex marriage would unreasonably put same-sex couples, who possess an innate alternate sexual orientation, at the whims and fancies of orthodox majoritarian norms. The unreasonable distinctions between the legal recognition of heterosexual marriages and same-sex marriages, as highlighted in multiple petitions before the Court, is a prima facie form of discrimination based on sexual orientation and does not withstand the test of constitutional morality. Therefore, it is the responsibility of the Supreme Court of India to recognize the fundamental rights of LGBTQ+ individuals and ensure that discrimination based on sexual orientation does not prevail.

The author is the Samvidhaan Fellowship Programme Manager at the Vidhi Centre for Legal Policy and writes extensively about LGBTQIA+ rights, the state of Indian politics, human rights, women’s rights, health, and mental health. All views are personal and do not necessarily reflect the views of the author’s institution.