Challenging The Constitutional Validity Of Non Recognition Of Same-Sex Marriage
Author: LawSphereX
Category: Constitutional & Human Rights
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CHALLENGING THE CONSTITUTIONAL VALIDITY OF
NON RECOGNITION OF SAME-SEX MARRIAGE Dibyajyoti Mandal, BBA LLB (Hons.), Amity Law School, Amity University Kolkata. Soujanya Das, BA LLB (Hons.), Amity Law School, Amity University Kolkata. Aakanksh Gupta, BBA LLB (Hons.), Amity Law School, Amity University Kolkata. "History owes an apology to members of the LGBT community" - Justice Indu Malhotra in Navtej Singh Johar v. Union of India.
ABSTRACT
While personal laws like the Hindu Marriage Act and The Special Marriage Act restrict marriage to heterosexual unions, the Hon’ble Supreme Court while interpreting Articles 14, 15, and 21 of the Constitution, in it’s landmark judgements held that the right to choose any person to be one’s life partner is a fundamental right. As the jurisprudence in India is religiously inclined , it is important to note the transformation of the status of homesexuality in Indian culture, which went from being gender fluid in the Vedic times to being conservative in the colonial era. There is ample amount of evidence that the Ancient Indian culture depict homosexuality. It was only during the colonial era that homesexuality was criminalised by the introduction of Section 377 of IPC by the British, which upheld the European beliefs.
The paper contends that the decriminalisation of Section 377 of IPC by the Hon’ble Supreme Court in it’s landmark judment in Navtej Singh Johar v. Union of India is not enough to safeguard the fundamental rights of the LGBTQ+ community, and legal recognition of same-sex marriage is necessary as the Constitution prohibits discrimination based on one’s sexual orientation. The paper discusses the feasibility of “Civil Unions” to allow for legal recognition of same sex relationships in India to some extent. Finally, the paper concedes that the amendment of the The Special Marriage Act as the most viable remedy for persons seeking recognition of same sex marriage in India. Keywords: Same-sex, Marriage, Personal Law, LGBTQ+, Right to Equality
INTRODUCTION
The official governementment data dates back to 2012, claiming the size of LGBTQ population in India to be 2.5 million but the current LGBTQ population of India is estimated to be around 135 million1. Therefor, non- recognition of same-sex marriage is a pressing issue in India, as it intersects human rights, social justice, and constitutional law. While global momentum and the judiciary has shifted towards legal recognition of same-sex marriages, Indian legislature continues to grapple with the issue. In many countries, marriage equality is recognized as part of the fundamental human right to equality and non-discrimination, yet in India, marriage remains confined to heterosexual unions under personal laws. This paper explores the legal and constitutional dimensions of this issue, analyzes judicial precedents, and proposes potential reforms to the existing legal framework.
METHODOLOGY
ADOPTED This research employs a qualitative, doctrinal approach, using judicial precedents and comparative legal analysis to examine India’s constitutional framework regarding same-sex marriage. Key Supreme Court cases (Navtej Singh Johar, NALSA, and Puttaswamy) are analysed alongside marriage laws (e. g. , the Hindu Marriage Act, the Special Marriage Act) to identify statutory limitations and potential areas for reform. A comparative perspective, referencing international frameworks like the Yogyakarta Principles, highlights global approaches to marriage equality. This study also explores the tension between constitutional morality and societal norms, advocating for legal recognition of same-sex marriage as aligned with fundamental rights of equality and privacy.
HISTORICAL FOUNDATION Throughout ancient India, the idea of gender fluidity has always been upheld, which can be seen in ancient scriptures such as Shastras, Sutras, and ancient architecture2. The Supreme Court re-affirmed in the Navtej Singh Johar3 judgement that there is indeed proof of 1 BBC News. "India's LGBTQ+ Community: How Marriage Equality Became a Fight for Dignity. " Published on October 14, 2023. https://www. bbc. com/news/world-asia-india-68933715
2 Sanjana Ray, "Indian Culture Does Recognise Homosexuality, Let Us Count the Ways", 2018,
https://www.thequint.com/opinion/homosexuality-rss-ancient-indian-culture-section-377, (Last Accessed: 31.10.2024)
3 Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1.
homosexuality in ancient India4. In the aspect of Hinduism and Buddhism, Lord Hanuman had the sight of rakshasa women kissing in Lanka5. Krittivasa Ramayana manifests that Lord Shiva appeared in the dream of the two wives of the deceased King Dilip and the Lord showed them that they would bear a child if they made love to each other, out of which King Bhagiratha was eventually born6. Shikandini in Mahabharata became a man to enter into the Battle of Kurukshetra7. Matsya Purana shows the tale of Lord Shiva falling in love with Mohini which was actually Lord Vishnu who transitioned into a beautiful woman, and their union led to the birth of Lord Ayyappa8. Mitra-Varun in Rig Veda are believed to be a homosexual couple representing the same sides of the Moon9. The Temples of Khajurao, the Ajanta Ellora caves and the Konark Temple shows various forms of homosexual sculptures and paintaings.
In the Mohammedan aspect, Babur depicts his attraction for Baburi, a boy, in his memoir Baburnama10. Also, Sufi saints named Sarmad Kashani and Shah Hussain fell in love with Hindu boys11. Before the British Era, there existed diverse customary laws relating to marriage, adoption, divorce and succession of property in accordance with customs in the different religions and kingdoms. The British matrimonial laws were introduced by Warren Hastings in 177212, which clubbed up all the different customs into only two laws, one for the the Hindus and one for the Mohammedans which we now call “personal laws”. After the formation of The Indian Penal Code13, homesexuality became a criminal liability. The British enforced these laws throughout their rule and were followed in India even after independence. This created an issue that certain customs were upheld, overshadowing the minority ones14.
It can thus also
4 Saif Rasul Khan, "SAME-SEX RELATIONSHIPS AND MARRIAGE IN INDIA
THE PATH FORWARD", GU Journal of Law. 5 Deepanshi Mehrotra, The Pre-Colonial History of Homosexuality in India: Why Love Is Not Western (Part I/III), June 29, 2021, https://www.lawctopus.com/academike/history-of-homosexuality-in-india/, (Last Accessed: 31.10.2024).
6 Ibid.
be concluded that the current personal laws does not derive their authority from religion15. A BRIEF HISTORY OF JUDICIAL REVIEW The Supreme Court has shown a proactive role in affirming the Fundamental Rights including the right to privacy16, the freedom to choose one's life partner17, and, most recently, the right to engage in consensual same-sex relations by decriminalizing homosexual intercourse18. Firstly, The Delhi High Court in Naz Foundation v Government of NCT Delhi, declared Section 37719 of the Indian Penal Code as unconstitutional for being violative of Right to Equality under Article 1420.
Secondly, the Supreme Court recriminalized Section 377 in Suresh Kumar Koushal’s case21 which resulted in an a petition by National Legal Services Authority22 in which the Supreme Court recognised transgender persons as the “Third gender” and certain judicial and legislative guidelines and procedures were laid down for safeguarding the rights of the third gender. While it resulted in the enactment of Transgender Persons (Protection of Rights) Act, 201923, the judgment in NALSA’s case24 was insufficient to guarantee the rights transgender persons as being recognised as a person of the Third gender requires a certificate of identity by the district magistrate which is argued to be a vehement administrative interference.
Thirdly, the Supreme Court in the Puttaswamy’s case25 recognised Right to Privacy as a fundamental right under Article 2126 which is irrespective of sexual orientation of a person, which inherently realises sexual freedom and the right to choose one’s life partner to be a private choice free from interference of the state. Finally, the as an aftereffect of the Puttaswamy judgement, the issue was settled by the Supreme Court via a 5 judge bench including the CJI in Navtej Singh Johar v. Union of India27
15 Ibid.
which decriminalised Section 377 upto the extent of consensual homosexual intercourse. THE CONSTITUTION FORBIDS MARRIAGE INEQUALITY From the constitutional aspect, denying homesexual couples the Right to Marry is violative of Right to Equality28 as it discrminatorily based on sexual orientation of a person29 as held by the Supreme Court in the NALSA’s30 case as confining the right of marriage to one man as one woman is not a constitutionally valid object. It is also violative of Article 1531 as being discriminatory on grounds of sex. Freedom of sexual orientation was expressely held as being a part of Right of Privacy32. It was reaffirmed by the Supreme court in Shafin Jahan’s case33 that the choice of life partner exclusively falls in the zone of privacy of an individual.
Descending from the Kharak Singh34 judgement, it was expressed in the Navtej Singh Johar35 judgement that denial of individual’s free will is derogatory of the Right to live with dignity, guaranteed under Article 2136. It was further established both in the NALSA37 and the Navtej Singh Johar38 case that expression of self-identity is an inherent Right under Article 19(1)(g). It can be therefore concluded from the aspect of morality that Constitutional morality shall always prevail over popular morality39 which can be seen in the Navtej Singh Johar40 judgement. NECESSITY OF SAME-SEX MARRIAGE A very philosophical reason for recognition of same-marriage is that marriage is a sacred way of expression of love for one another. Homosexual couples seek marriage because society has
28 India Const. Art. 14.
29 Manderna, Mohit Kumar and Vatsa, Kritika, Advocating Same-Sex Marriages through Constitutional Morality (October 5, 2023). Available at SSRN: https://ssrn.com/abstract=4712027 or http://dx.doi.org/10.2139/ssrn.4712027
30 NALSA v. Union of India, (2014) 5 SCC 438.
31 India Const. Art. 14.
32 Justice (Retd.) K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
33 Shafin Jahan v. Asokan K.M. & Ors., (2018) 16 SCC 368.
34 Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295.
35 Navtej Singh Johar & Ors. v. Union of India, (2018) 10 SCC 1.
36 India Const. Art. 21.
37 Id. at 30
38 Id. at 35
made them believe that marriage is the ultimate expression of connection and commitment41. This aspiration for marriage as a meaningful bond goes beyond sexual orientation, reflecting a shared cultural value. Although the conservative Indian society is far from acceptance of homosexual marriages, legal recognition will provide leverage for social recognition42. More practical resons are the legal benefits of marriage such as maintenance or alimony, succession of property, and benefits under certain government schemes for spouses43, are not available to homosexual couples44. United Nations Universal Declaration of Human Rights provides that men and women of maritable age have the right to marry without any limitations45, to which, India is a signatory. SAME-SEX MARRIAGE UNDER THE PERSONAL LAWS The Supreme Court in N. C. Masilamani Mudaliar v.
Idol of Sri Swaminathaswami Thirukoil46 held that personal laws gain their authority from religious scriptures and not the constitution but would be void to the extent it is derogatory to fundamental rights enshrined in the constitution. The recognition of same-sex marriage in India under various personal laws can be done either by interpretation of the personal law or by resorting to the constitution to annull the provision of the personal law47; Under Hindu Law, the Hindu Marriage Act48 provides solemnisation of marriage can be done between “any two hindus”, and gender neutral terms such as “parties” has been used, suggesting that one man one woman rule has not been hinted under Section-5. The only exception is that the term “bride”, “bridegroom”, “husband and wife” has been used at few other instances to describe the spouses, e. g.
“the bridegroom has completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage”49. Under the Hindu marriage act, marriage can be solemnized by performing saptapadi and datta homa. In Hinduism it is believed that marriage is a union between “two souls” whose purpose is to attain moksha together and not a man and a woman,
41 Nayantara Ravichandran, "LEGAL RECOGNITION OF SAME-SEX RELATIONSHIPS IN INDIA",
JOURNAL OF INDIAN LAW AND SOCIETY, (Vol. 5 : Winter)
42 Id. at 14
so there has been cases of ceremonial rites being performed by homosexual couples50. Therefore, interpretory relief possible under Hindu Law. Under Muslim Law however, the Holy Quran regards those persons who seek pleasure from something other than an Islamic marriage as “transgressors”51, and the Muslim personal law in India being vastly uncodified, derives it’s authority from the Holy Quran and the Shariat, therefore, only constitutional argument is possible. Under Christian Law, the situation is somewhat similar to Hindu Law but with one major issue. The Indian Christian Marriage Act52 recognises marriage between two Christianss or between a Christian and a non-Christian53, but terms such as “Husband and Wife” has been used to refer to “parties” and most importantly, solemnization of marriage under the Act requires proclamation of so by a priest or the Church.
The problem is that although some Christians believe in a different interpretation, homosexuality in the Holy Bible has been described as a sin54 thus only leaving constitutional argument as a possible relief. The Special Marriage Act55 unlike the other personal laws, does not derive it’s authority from religious scriptures and was enacted solely for the purpose of freedom to chose one’s life partner. Terms like “male” and “female”56, “husband and wife”, can be amended or removed by legislative or judicial action by interpretation of the constitution respectively. INTERNATIONAL PERSPECTIVE Article 16 of the United Nations Universal Declaration of Human Rights57 uses the word “without any limitations”, in the context of men and women of maritable age to marry58. Currently, 36 countries have legalised same-sex unions in the form of marriage or in the form of civil unions.
Summarizing the jurisprudence in different jurisdictions; the United Kingdom resorted to civil unions as a form of recognition for same-sex unions59 through the Civil Partnership Act60. Supreme Courts in the United States striked down DOMA61 which
50 Arvind Narrain, Et alia., "Law like love
queer perspectives on law", (2011), Yoda Press
51 THE HOLY QURAN, Chapter 23, Verse 5-7
52 Indian Christian Marriage Act, 1872 (Act No. 15 of 1872), Acts of Parliament.
53 Indian Christian Marriage Act, 1872, § 4, (Act No. 15 of 1872), Acts of Parliament.
54 Bible Gateway, Leviticus 18:22,
https://www.biblegateway.com/passage/?search=Leviticus+18%3A22&version=NIV (Last visited on 31.10.2024)
55 Special Marriage Act, 1954 (Act No. 43 of 1954), Acts of Parliament.
56 Special Marriage Act, 1954, § 4(c), (Act No. 43 of 1954), Acts of Parliament.
57 Universal Declaration of Human Rights, Article 16, United Nations General Assembly, 1948.
58 Id. at 29
59 Id. at 41
classified marriage as a union between “one man and woman”, holding that marriage laws that prevent same-sex unions are unconstitutional62. Similar is the case in South Africa, where the Constitutional Court interpreted §9(3)63 of the Constitution of South Africa which goes one step further providing for the Right against discrimination on the grounds of both gender and sex64. Although not binding, the leading piece of document in relation to rights of trangender persons is The Yogyakarta Principles65 and The Yogyakarta Principles Plus 1066 which were incorporated by the Supreme Court in the NALSA67 judgement68. RECOGNITION OF CIVIL UNIONS - A POSSIBLE ALTERNATIVE?
A civil union is a legal institution between two homosexual individuals which is recognised in various jurisdictions for providing homosexual couples the legal benefits of marriage. Evident by Solicitor General Tushar Mehtas Statement in Abhijit Mitra Iyer69 case, the population and the government is not ready for the destruction of delicate balance of personal laws which recognition of same-sex marriage would allegedly create. Althought civil union is the best possible way of recognition of same-sex relationships in India because it avoids that debate of whether marriage must be between a man and a woman70 altogether in a religiously inclined country like India, it does not posses the same level of sacredness and social recognition as marriage.
Two persons having the same legal benefits does not necessarily provide the same status to a relationship compared to marriage and furthermore, it would require amendment of certain laws such as guardianship, succession, wormen’s compensation, etc71.
CONCLUSION
The practice of step by step recognition of human rights and their incorporation into the
62 Obergefell v. Hodges, 576 U.S. 644 (2015).
63 S. Afr. Const., 1996 § 9(3).
64 Minister of Home Affairs v. Fourie 2006 (1) SA 524 (CC) (S. Afr.).
65 The Yogyakarta Principles
Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, Mar. 2007. 66 The Yogyakarta Principles plus 10: Additional Principles and State Obligations on the Application of International Human Rights Law in Relation to Sexual Orientation, Gender Identity, Gender Expression and Sex Characteristics to Complement the Yogyakarta Principles, Nov. 2017.
67 NALSA v. Union of India, (2014) 5 SCC 438.
68 Id. at 14
constitution has always been followed by the Supreme Court. Puttaswamy, NALSA and Johar have already laid the foundation for recognition of same-sex marriage in India. The judgements in these case expressly provide that non-recognition of same-sex marriage is a violation of Article 14 and Article 15 of the Constitution. However, the rigid framework of personal laws continues to hinder progress as religious intervention which is the perception of the majority, is not possible under current societal norms. However, constitutional morality must override societal norms. The decriminalisation of Section 377 is very much distant from upholding the dignity of homesexual couples.
As civil unions are not the effective remedy, at this stage, only after recognition of homosexual couple’s right to marry, a reading down of the Special Marriage Act, interpreting male and female as male or female is the only possible solution.