By Himansi Gupta (Associate)
BACKGROUND
Marriage is an institution that is recognized as a both social and cultural union. It is traditionally held between men and women. Marriage has been the primary means through which the human species has been able to bring forth new generations. The institution of marriage represents the most fundamental component of human society, it is the foundation upon which a family is built. Marriage brings order to the sexual lives of human beings, allowing them the opportunity to have children and thereby contributing to the continuation of the human race. It gives the couple new social contracts as well as rights that they can share. It lays the groundwork for the rights and the position of the children from the moment they are born. Every community acknowledges a distinct set of processes for establishing such relationships and rights. When it comes to making decisions about marriage, the community has established specific standards, preferences, and prohibitions. Thus, the question arises, whether the LGBT community should be accepted everywhere in the world, which is still being debated.
FACTS OF THE CASE
On November 14, 2022, same-sex couples filed a Writ Petition before the SC (SC) to grant legal recognition to Same-sex marriages in India. The petition’s main focus was around the constitutionality of the Special Marriage Act (SMA), which was challenged, stating that Section 4(c) of the Act recognizes male and female marriage. This discrimination between same-sex couples, and due to this, they are unable to get the benefits of their married lives. The Petitioners asked the SC to declare it unconstitutional as it violates equality, privacy, and the right to life.
ISSUES TO THE MATTER
(1) Whether the LGBTQIA Community has the right to marriage or not?
(2) If they have the right to marry, then can SC make a declaration to this effect?
(3) Whether the LGBTQIA Community not being included under SMA amount to Violation of Article 14 of Indian Constitution?
LAWS INVOLVED
(1) Articles 14, 15, 19, and 21 of the Constitution of India, 1950.
(2) Section 4 of the Special Marriage Act, 1954.
ARGUMENTS IN FAVOUR OF THE LEGALISATION OF SAME-SEX MARRIAGE IN INDIA
Mentioned below are the arguments that were put in favour of the legalization of Same-Sex Marriage in India-
(1) Provides Equality to Homosexuals – The legalization of same-sex marriages is crucial in promoting equality and non-discrimination. Articles 14 and 15 of the Constitution prohibit discrimination on the basis of sex. The SC in the Navtej Singh Johar case (2018), interpreted “sex” to include “sexual orientation”. Denial of the right to marriage to same-sex couples is discrimination against them based on their sexual orientation.
(2) Ensures Right to Privacy – The SC in the K.S. Puttaswamy case (2017), held the right to privacy as a fundamental right (Under Article 21). The right to privacy encompasses the ability to make choices regarding one’s body and intimate relationships. Legalization of same-sex marriage would ensure the homosexual couple’s right to privacy.
(3) Provides Legal Protection – The legalization of same-sex marriage will provide legal protection to homosexual couples under laws that guarantee rights such as wages, gratuities, adoption, surrogacy, inheritance, joint ownership of property, and healthcare.
(4) Enlargement of Human Rights – Same-sex marriage is a human rights issue. The United Nations has recognized the importance of LGBT (lesbian, gay, bisexual, and transgender) rights and has called for the protection of the human rights of LGBT individuals, including their right to marry.
(5) Significance to the Homosexual Relationship – The legalization of same-sex marriage will provide same-sex relationships with a sense of significance, direction, and identity.
(6) Promotes Social Acceptance – Legalisation of same-sex marriages would promote social acceptance of LGBT individuals and relationships. It would help to reduce social discrimination and stigma.
(7) Transformative Constitutionalism and Progressive Realization of Rights – The legalization of same-sex marriage will be a step further in the domain of transformative constitutionalism and progressive realization of minority rights. The SC of India invoked the aforesaid principles of transformative constitutionalism in the Navtej Singh Johar Case (2018) which invalidated Section 377 of the Indian Penal Code (IPC), 1860.
(8) Granting Marriage Equality does not require an unprecedented move from the Supreme Court – Both the basic structure doctrine and the right to privacy verdict involved far more substantial and extensive cases of interpretation of the constitution by the SC. Legalization of same-sex marriage can be done within that extensive interpretation framework evolved by the SC.
(9) Homosexuality not limited to Urban and Elite Areas – The ones who argue for same-sex marriage, claim that homosexuality is not just limited to urban areas. A major percentage of homosexuals reside in rural areas and towns. According to them, homosexuals constitute around 7-8% of the country’s population.
(10) Marriage is an evolving Institution – According to the proponents of same-sex marriage, marriage is an evolving institution according to the prevalent social values of the times. Gandharva marriages based on mutual consent, Daiva Marriages where a girl was married to a teacher, and Arsha marriages where women were married to rishis, have all been the result of the prevalent social values of those times. The demand of modern times is same-sex marriage. Hence it should be allowed.
(11) Global Acceptance of Same-Sex Marriage – Same-sex marriage is legal in 34 countries around the world. Denial of this right to individuals in a democratic society goes against global principles.
(12) Right to Marry as a Human Right – Under the Universal Declaration of Human Rights (UDHR), 1948, the right to marry is a human right. Article 16 provides that, Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.
(13) Logical next step after Decriminalization of Section 377 – It is logical to assume that in a situation when a couple is having a physical relationship, they may progress to a long-term relationship, including that of marriage.
ARGUMENTS AGAINST THE LEGALISATION OF SAME-SEX MARRIAGE IN INDIA
However, the central government and various other advocates put several arguments against the legalization of same-sex marriage in India. These are mentioned below –
(1) Against Religious and Cultural Beliefs – In India, aspects of marriage, succession, and adoption are governed by religious personal laws. These marriage laws and customs are for heterosexual couples only. Hence, the legalization of same-sex marriage goes against Indian religious and cultural beliefs.
(2) Legal Complications – The legalization of same-sex marriages could lead to legal complications in issues related to adoption, child custody, inheritance, and taxes.
(3) Children’s Rights – The opponents have argued that children are better off being raised by heterosexual parents. In Indian society, where acceptance of the LGBTQIA+ community is not universal, it can lead to societal stigma, and discrimination and affect the mental health of adopted children of LGBTQIA+ couples.
(4) Marriage is a matter of Public Policy and must be decided by the Parliament – Marriage is a matter of public policy and must be decided by the Parliament and the executive alone. The legalization of same-sex marriage would also require changes in the age of consent, prohibition of bigamy, and judicial and divorce acts.
(5) Can create Social Unrest – Same-sex marriage is not widely accepted in Indian society. Legalisation of homosexual marriage could create social unrest, and disrupt social norms and values.
(6) Urban-Elitist Demand – The demand for same-sex marriage is only an urban-elitist demand. It is not the demand of the rural and semi-urban areas.
(7) Against the Natural Order of Things – Some people argue that the primary purpose of marriage is procreation and that same-sex couples cannot have biological children. Therefore, they believe that same-sex marriage should not be allowed because it goes against the natural order of things.
In the same-sex marriage case, four (4) key questions were framed. While the majority and minority judgments agreed in their verdict on some questions, there were disagreements on other questions.
| Key Question | Minority view (2 Judges) & Majority view (3 Judges) |
| The fundamental right to marry The petitioners wanted the SC to declare marriage as a fundamental right as the SC declared Privacy as a fundamental right in 2017. | Both the majority and minority views rejected the question of declaring marriage as a fundamental right. Minority view’s rationale for rejection- Marriage has attained social and legal significance only because the state has regulated it through law. Majority view’s rationale for rejection- Marriage is important for an individual but cannot be considered fundamental for their existence. |
| Re-Interpretation of Special Marriage Act (SMA) 1954 The petitioners had asked the SC to interpret the word ‘marriage’ in SMA. They wanted the marriage to be defined as between “spouses” instead of “man and woman”. The petitioners had also asked for striking down provisions of the SMA that are gender-restrictive. | Both the majority and minority views rejected the demands of the petitioners for the re-interpretation of the Special Marriage Act (SMA) 1954. Minority view’s rationale for rejection- The re-interpretation of SMA 1954 would amount to entering into the realm of the legislature. Majority view’s rationale for rejection- At the time of enactment of the law, the parliament intended it to be applicable only to heterosexual couples belonging to different faiths. |
| Queer couples’ right to adopt a child The petitioners had argued that the guidelines of the Central Adoption Resource Authority (CARA), which does not allow unmarried couples to jointly adopt children, are discriminatory against queer couples as they cannot legally marry. | Minority View- Strike down the discriminatory provisions of the CARA regulation. Rationale for striking down – Reinforces the disadvantage already faced by the queer community. The law cannot make an assumption about good and bad parenting based on the sexuality of individuals. Majority view- Agreed with the minority view that CARA provisions are discriminatory. But these provisions cannot be stuck down by the judiciary. Rationale for not striking down by the judicial pen -The legislature and executive only should remove these discriminatory provisions. |
| Civil unions for queer couples Civil Union was considered as the halfway approach before granting complete marriage rights. The US Supreme Court had adopted the same approach of recognizing civil unions first before granting complete marriage rights. However, the petitioners argued that civil unions are not an equal alternative to the legal and social institution of marriage. The petitioners argued that relegating non-heterosexual relationships to civil unions would send the queer community a message that their relationships are inferior to those of heterosexual couples | Minority View – Favoured the civil union and prescribed it as a ‘choice’ for the queer community. Located the right to form Civil Unions within the fundamental right to freedom of speech and expression. The committee chaired by the Cabinet Secretary should be constituted to set out the rights which would be available to queer couples in civil unions. Majority View – Agreed with the minority view. But the judiciary should not prescribe civil unions as a ‘choice’ to queer couples. The majority opinion said that the state (legislature, executive) should facilitate this choice and that too, only for those who wish to exercise it. |
JUDGMENT
The Supreme Court held the validity of the Special Marriage Act and declared that the right to marry is not a fundamental right under Indian Constitution.
ANALYSIS OF THE JUDGMENT
Does the Indian Constitution give people the right to get married?
The Court pointed out that Marriage has always been seen as a highly religious act that is legal because of personal law and customs. It was in the 19th and 20th centuries that the State and governments got involved. This was when personal rules and customs were given social status through codification. This kind of writing can be seen in the “Indian Succession Act, the Hindu Women’s Right to Property Act, the Hindu Marriage Act, the Muslim Personal Law (Shariat) Application Act, and other laws”. Codification by the State was done for two reasons: to remove social barriers and to make rules for the good of society or to protect women.
As stated in the Constitution, it is the State’s duty to make and regulate Marriage. This has been done through the laws as mentioned above. By law, everyone has the right to get married, but not under the Constitution. For instance, SMA is a law that has given marriages between people of different religions and castes more social standing.
In earlier decisions, Did the Court recognize the “Right to Marry”?
When hearing cases like Navtej Singh Johar and others, the Court has talked about the issue of gay marriage. The Court said, “These judgments made it clear that we need to respect and value the choice of gay couples.” The statements were made in the context of making it illegal for gay couples to have sexual relations on their terms. The observations, on the other hand, have pointed in the direction that there should be some social ordering of institutions that not only allow this choice but also make it easier for people to practice it in a meaningful way beyond their privacy rights and to live together. There is no question that the decision had the effect of decriminalizing drugs. Still, it wasn’t necessary to say that social institutions should fully accommodate and facilitate the exercise of choice.
Judicial Interpretations
In NALSA v. Union of India AIR 2014 SC 275, it was held that transgender cannot be discriminated against. Article 15 mentions the word “Sex” which implies that there is no discrimination, particularly between men and women. Thus, transgender people have the right to live with dignity in the society.
In Navtej Singh Johar v. Union of India AIR 2018 SC 790, it was held that the LGBT Community is entitled to all rights and privileges. Thus, the court decriminalizes Section 377 for same-sex as it is against Articles 14, 15, and 21 of the Constitution.
In K.S Puttuswamy v. Union of India AIR 2017 SC 4161, it was held that the right to privacy includes the aspect of autonomy, liberty, and dignity.
However, it is observed that in the above judgments, there was no talk of whether same-sex or LGBTQ+ couples should be able to get married in any of the earlier decisions. Because of this, there is no binding law on this point.
Marriage is a Union
In the present case, C.J. Chandrachud says that same-sex couples have the right to union in his personal opinion, which is not binding. He says that the State needs to make this right real. He means an institution like Marriage that works in many countries when he says “union.” The majority opinion, on the other hand, says this right is not valid for two reasons.
Marriage is recognized by the government as an institution. A person can’t go to the Court and ask them to make a structure that works like Marriage; that’s the government’s duty. The Court has never set up a social organization like this before. Because of this, Article 21 says people have the right to a relationship, not a union. This includes the freedom to pick a partner, live together, and be physically close. Other rights go along with this, like the right to privacy, autonomy, and respect. This right also includes the right not to have the government get in the way. For instance, if a queer couple is being bothered by their families and the cops because they live together, they can use their constitutional right to a relationship to get help.
In Shakti Vahini v. Union of India (2018) 7 SCC 192, it was held that the Khap Panchayat shall be punished to prevent two adults from marrying each other. Hence, they have the same rights as all citizens to live freely and make their choice known without being harmed in public.
However, there are many real-world problems with recognizing the Right to Marry. To make a new social organization, someone would have to come up with a new set of rules that states the rights and duties of queer partners, as well as the requirements for a legal marriage, the reasons for divorce, the right to support, alimony, and other things. In reality, this is an act of passing a law, which is the government’s duty and not the courts.
Is the Special Marriage Act (SMA) against the Constitution?
The applicants questioned the constitutionality of SMA because it wasn’t adequately classified. To put it another way, SMA is unfair because it doesn’t allow non-heterosexual couples to get married, which means that the way it decides who can get married is unfair to them. Another way to look at this is that the SMA is not open enough because it does not cover non-heterosexual couples.
The Court pointed out that under Article 14 of the Constitution, a law that classifies that something can be challenged if-
(a) it creates an unfair advantage or
(b) it is based on a false assumption and has nothing to do with the purpose of the law.
The courts have supported laws that only affected a particular group of people in several situations as long as the above rules were followed. Also, the legislature may bring reforms one at a time, giving more attention to some institutions than others. This would not be an unfair or discriminatory way to group people.
Putting in place the SMA was meant to replace old colonial rules and allow straight couples of different faiths to be together. Small steps were taken to change things, and at that time, the attention was on one community. Section 377 of the IPC made it illegal for non-heterosexual partners to be intimate with each other without permission at the time.
Why can’t the Court read SMA in a way that doesn’t include gender?
In this case, “spouse” could be used instead of “husband and wife.” The rules in law must be interpreted in a way that follows the writers’ meaning and the law’s purpose. As you can see from the above, the SMA only wanted to work with straight partners. It would be against established rules of statutory reading to use a gender-neutral interpretation that includes non-heterosexual couples. However, Section 4 of the act (conditions for solemnizing particular marriages), is set up to allow weddings between a man and a woman. To read SMA in any other way would go against the rules for figuring out what a law means, which we talked about in the previous lines.
In addition, the SMA’s gender-based rules were meant to protect a group of people who were socially excluded. For instance, laws like alimony and support give women certain rights. If gender-neutral language is used, women would lose these perks, or even worse, it would make it hard for the courts to decide which spouse should get the benefit. This would mean that SMA could not be used.
The Court said, it might be possible to read these provisions in the way that was suggested, but it would have an impractical effect on specific provisions like the separate lists for wives and husbands for age, figuring out the levels of relationships that are not allowed, and remedies like divorce and maintenance.
Did the Court order the Government to take action?
The Court agreed that Marriage is a significant part of society because it is a way for the government to give perks like jobs (including people in pension plans and personal accident insurance), loans, and money in the event of fatal accidents. Because Marriage is only recognized for straight people, queer couples are indirectly discriminated against.
The Court told the Union government to:
(a) set up a High-Powered Committee to look into all the issues in this case and the concerns raised by the Courts about queer rights and
(b) make sure that queer couples’ Right to Relationship is not violated and they are not threatened with violence or forced to end their relationship.
It also told the government to take action on these suggestions immediately because doing something for a short time can lead to unfair situations. It lets the government decide what kind of action to take, such as passing new laws, changing old ones, or making rules and regulations official. On the other hand, lawmakers and governments that don’t do anything for a long time can cause injustices. To ease this feeling of exclusion that stays in the thoughts and experiences of people in this community, action in this area would go a long way.
The petitioners were discriminated against because the State chose not to recognize their emotional union or relationship, which had a negative effect on their received benefits. There is a reasonable interest for the State to take action because of this discriminatory effect. It is up to the legislature and executive to decide what action to take, such as passing a new umbrella law or making changes to existing laws, rules, and regulations that currently keep a same-sex partner from getting benefits that are usually given to a “spouse” or “family” in the heteronormative sense.
Why didn’t the Court give the government orders it had to follow?
The Court has to follow the idea of separation of powers, which says it can’t do the work of the legislature or the executive branch. The concept says that the Court can only tell the other parts of the Constitution to do their jobs rather than making orders that must be followed.
In Vishakha v. State of Rajasthan AIR 1997 SC 3011, the Court made rules about what the law says about sexual harassment at work. Since there was no law on the subject then, it was like making a code. What made the case different, though, was that the Union government asked the Court to make rules, which is different here. This means that in the Vishakha case, the government asked the Court to make laws, but in this case, no such request was made.
CONCLUSION
Thus, the Preamble states, “WE THE PEOPLE OF INDIA”, which shows that every citizen of the country is equal and there shall be no discrimination. In the earlier decisions, the Court has recognized the right to marry under Article 21. Still, in the present case, for the validity of same-sex marriage, the Court has taken their move back and held that the right to marry is not a fundamental right. Hence, they have upheld the validity of the Special Marriage Act that same-sex marriage cannot get recognition under this Act. Consequently, queer couples became ineligible to adopt. The judgment has refused to recognize queer marriages or civil unions. It does not open any doors, only a few windows that were already unlocked.
REFERENCES
Abott Law Office 