ON September 6, 2018, when within the landmark judgment of Navtej Singh Johar vs. Union of India a five-judge constitutional bench of the Supreme Court of India struck down those provisions of a 162-year-old colonial statute (Section 377 of the Indian legal code, 1860) that criminalized private and consensual same-sex activity between adults, one in all the judges remarked: “Sexual orientation of an individual is an important attribute of privacy…The right to privacy is broad-based and pervasive under our Constitutional scheme, and encompasses decisional autonomy, to hide intimate/personal decisions and preserves the sanctity of the private sphere of a private.”
It is precisely this attribution of privacy that has, rather ironically, stymied the Delhi High Court’s ability to adjudicate in favour of recognizing duet. In fact, the problems facing Indian courts are literally more expansive than mere questions of privacy rights for homosexual people.
Multiple petitions are now pending before the Delhi state supreme court seeking to acknowledge same-sex marriages in India under the Special Marriage Act, Hindu Marriage Act, and Foreign Marriage Act, among others, with the subsequent hearing scheduled for tomorrow.
In a response to those petitions, the peace officer of India, Tushar Mehta, appearing on behalf of the Union Government, made some observations in October last year. He said that the term ‘spouse’ and ‘marriage’ within the Citizenship Act brought up heterosexual couples only, and hence, actual excluded same-sex couples. Moreover, this was a grip that the govt. was comfortable with.
Secondly, he stated that Navtej Singh Johar decriminalized private, consensual same-sex activity between adults. It failed to discuss public, consensual same-sex activity, and hence, couldn't be attributed to granting homosexual people marriage rights.
The Union Ministry of Law and Justice had in February 2021 remarked that ‘legitimate State interest’ lay in limiting the institution of marriage to those of the other sex only to preserve ‘social morality’. Hence, the government’s stance on the problem was clear: courts should refrain from legitimizing couple.
Two challenges facing the courts
The contemporary discourse in India surrounding equitable marriage laws has typically focused on religious minorities (specifically Muslims) and ladies. The Supreme Court’s landmark NALSA judgment in 2014 recognized the constitutional rights of the third gender for the primary time. Similarly, successive Supreme Court judgments like Puttaswamy (in 2017) and Navtej Singh Johar (in 2018) did the identical for sexual minorities.
In doing so, the courts did precisely that which staunch opponents of duet had feared – namely, expanding the legal contours of sex, gender and sexuality overnight, in ways in which even the courts weren't equipped to grapple with. In fact, the Apostolic Alliance of Churches and also the Utkal Christian Council – two groups that opposed the reading down of Section 377 – stated that “the decriminalization of Section 377 IPC will open a floodgate of social issues which the legislative domain isn't capable of accommodating as same sex marriages would become social experiments with unpredictable outcome.” while their arguments didn't sway any of the five Supreme Court judges adjudicating the constitutionality of section 377, these words ironically determine today given the Delhi High Court’s reluctance to acknowledge marriage rights for same-sex couples.
Marriage may be private when it's seen as an intimate coupling of two people, and it are often public when it's celebrated as a collective union of two people – and two families. If hostility to LGBTQIA+ people comes from both the general public and personal sphere, why should positively affirming rights be restricted only to the private sphere?
Keeping in mind the historical cis normative and heteronormative framing of Indian law, it comes as no surprise that our courts are still struggling to grapple with the complexities around LGBTQIA+ issues. One such issue facing the courts is that the contested idea of individual privacy.
While the Supreme Court of India made it clear in Navtej that consensual and personal same-sex activities between adults did constitute an important a part of one’s privacy, the identical court didn't make explicit the excellence between the private and therefore the public sphere. In its judgment, the court talked an excellent deal about the social ostracization and humiliation faced by the Indian LGBTQIA+ community, but by limiting itself to the domain of the private sphere, it left to one’s imagination the determination of whether marriage was public or private; in the end, marriage is both a personal and public affair – a bit like sexuality. Marriage are often private when it's seen as an intimate coupling of two people, and it will be public when it's celebrated as a collective union of two people – and two families. Moreover, if hostility to LGBTQIA+ people comes from both the general public and personal sphere, why should positively affirming rights be restricted only to the private sphere?
Some would say that greater visibility could actually help LGBTQIA+ people live more freely, and so, help society be more sensitive to their needs. the actual fact of the matter is that the formal recognition of bisexual would push same-sex couples even closer to the mainstream and into the ‘public sphere’ – an area primarily occupied by heterosexual people in India today. It seems as if courts are uncomfortable with this possible development, hence their reluctance.
Proponents of an identical Civil Code should know that in Narenda Modi’s India, it's unlikely that LGBTQIA+ rights will find space. After all, this government neither opposed nor advocated for the decriminalization of homosexuality, but did oppose amending the Hindu Marriage Act to acknowledge same sex marriage.
It has been suggested that that same sex fighting advocates mustn't emphasise on amending personal laws, but instead, concentrate on either amending secular legislation just like the Special Marriage Act (which facilitates marriages between people of various religions, or those that don’t want to be bound by their religion’s personal laws) or reading down the Special Marriage Act as unconstitutional on the grounds that it discriminates against sexual and gender minorities. While this approach may sound feasible, it doesn’t address the elephant within the room: namely, the failure of our system (and our society) to properly remedy the glaringly obvious contradictions between fundamental rights on the one hand and gender/sex discrimination under personal law on the opposite.
The Netherlands was the primary country within the world to legalize twosome quite 20 years ago. Since then, 31 countries have followed suit. However, identifying as LGBTQIA+ remains illegal in 70 countries, with some countries even prescribing the corporal punishment for homosexuality.
India lies somewhere within the middle – with a watered-down section 377 in its statute books, it's not a criminal offense to enter into adult, consensual, and personal same-sex relationships. However, the absence of strong LGBTQIA+ inclusive policies at the union, state and district levels, and an overall lack of political will to make better laws for LGBTQIA+ people implies that these issues will take a back seat.
When the union government stated that there existed a ‘legitimate State interest’ to limit marriage to a bond between a biological man and a biological woman, one must ask: Why? What business does the State have in excluding from the contours of marriage adults in consensual relationships who form a(n) (in)visibly oppressed minority group?
The legal framing to acknowledge non-traditional heterosexual marriages exists in Indian jurisprudence.
It should be noted that in Arunkumar and Anr. vs. The military officer of Registration and Ors. (2019), the Madras court upheld a Hindu marriage between Arunkumar (a cisgendered man) and Sreeja (a transgender woman). Justice G.R. Swaminathan remarked that the term ‘bride’ in Section 5 (conditions for a Hindu marriage) of the Hindu Marriage Act must not have a static meaning. Instead, it had to be reinterpreted in light of fixing socio-cultural norms to also include transwomen, intersex people, and other transgender folks that identified as women. The court further recognized the existence of multiple gender identities. While the court failed to discuss duo in its judgment, it did uphold the validity of marriages across genders (that is, people who weren't biological women – contrary to the union government’s position).
The right to marry an individual of one’s choice was also determined by the Supreme Court within the famous Hadiya case of 2018 within the context of inter-religious marriage and spiritual conversion from Hinduism to Islam.
Thus, the legal framing to acknowledge non-traditional heterosexual marriages exists in Indian jurisprudence. The time has come to increase these rights to homosexual people. Furthermore, the courts must also resolve the long-standing tensions between fundamental rights and private laws, and rethink its position on sex and gender equality. Otherwise, they're going to find themselves on the incorrect side of history.