Authored by Samarth Varshney & Arjun Maheshwari, 2nd-year Law Students at Dr. Ram Manohar Lohiya National Law University, Lucknow
Introduction
In a democratic country like India, everyone is entitled to live life independently with equal rights. But the question here arises: do we all have access to these rights? Well, the answer to this question is a big NO!
Recently, a constitutional bench of the Supreme Court has heard a bunch of 30 petitions and a report titled Apnon ka Bahut Lagta Hain related to the marriage rights of homosexual couples in any uncodified personal laws. The supporters of the petitions argue that as India already decriminalized homosexual relationships in 2018, then why should it not legalize same-sex marriages in 2023? Not recognizing same-sex marriages violates the rights guaranteed in the Constitution.
However, the respondent, i.e., the government, contends that same-sex marriages go against the Indian Culture as it is neither recognized nor accepted in any personal laws. They further contend that the family is the basic unit of Indian society, but as same-sex couples can’t procreate, they can’t constitute a family, and that is why such marriages go against society. So, should India legalize same-sex marriages or not? This question needs discussion as it affects a lot of Indians. According to a report, nearly 7-8% of the Indian population falls under the LGBTQIA+ community.
This article aims to discuss the pervasive violation of the rights of homosexual people, focusing on their struggles to secure equal recognition and legal protections and simultaneously exploring potential ways forward for them in case they are denied justice in the ongoing case.
Fundamental Rights Under Siege
Violative of Article 14
The classification fails the doctrine of reasonable classification.
The Special Marriage Act (hereinafter referred to as ‘the Act’) was enacted with the objective of helping people to solemnize marriages that fall outside the scope of personal laws. However, the Act fails the doctrine of reasonable classification. First, there is no ‘intelligible differentia’ of discriminating against same-sex couples’ right to marry based on their inability to have children, as the law allows other couples who are unable to conceive to marry, and numerous couples become parents through adoption or utilize assisted reproductive technology like artificial insemination. Secondly, there is no valid rational nexus that the Act is achieving by excluding same-sex from its provisions. The Act operates under the assumption that marriage involves a heterosexual couple.
As an illustration, the requirements for marriage solemnization in Section 4 of the Act specify that “the male has reached the age of twenty-one years and the female has reached the age of eighteen years.” Hence, the Act disregards the principles of equal treatment under the law by discriminating against individuals solely on their sexual orientation, which is a violation of Article 15(1) and thus unjust, unreasonable, and manifestly arbitrary.
Violative of Article 19
Further, Article 19(1)(a) of the Constitution of India guarantees all citizens a right to freedom of speech and expression. This includes the right to express one’s gender and sexual identity, which may be done in myriad ways, including words, actions, behaviour, or any other form. A marriage is an expression of love and commitment and should be covered under the freedom of expression.
Admittedly, the freedom is not absolute and comes with certain reasonable restrictions in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.
It is apparent that none of the above parameters seems reasonable enough to not legally recognize marriage between people of the same sex, except on the grounds of public decency or morality. However, decency and morality are highly subjective concepts. What might have been immoral ten years ago could have been accepted as a social norm today.
Additionally, it has been held by the Supreme Court that morality and decency, as the basis of restriction upon Article 19, should not be amplified beyond a rational or logical limit. It has also been noted that the anticipated danger to public interest should not be remote or farfetched but should be directly related to the expression.
Violative of Article 21
In Shafin Jahan v. Asokan K.M. (“Hadiya’s case”), Justice Chandrachud, in his concurring opinion, has held that:
“The right to marry a person of one's choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable.” (Para c. 87)
In the case of NALSA v Union of India, recognition has been made that sex and gender are fundamentally rooted in psychology rather than biology. Additionally, it acknowledged that an individual’s sexual orientation is a core element of their personality, representing a fundamental aspect of self-determination, dignity, and freedom.
However, the Act violates the rights of the two consenting adults as such rights have not been extended to same-sex couples.
International Aspect
Many countries have long advocated for the legalization of same-sex marriage. In 2001, the Netherlands became the first country to legalize same-sex marriage in the world, and since then, about 30 countries have followed suit.
On 20 June 2023, Estonia became the first ex-Soviet Bloc country to sanction marriage equality, with the law coming into effect next year.
Currently, the acceptance of marriage equality is predominantly observed in nations situated in North and South America, Europe, and Oceania regions. Notably, South Africa uniquely represents marriage equality in Africa, while Taiwan stands as the sole Asian country to have sanctioned same-sex marriage.
Anticipated progress in the advocacy for legalizing same-sex marriage in 2023 is expected in several countries, including the Czech Republic, Japan, the Philippines, and Thailand, as indicated by the Human Rights Campaign. Before Estonia, the most recent instances of legalizing marriage equality occurred in 2022, notably in Cuba, Andorra, and Slovenia.
Recently, in 2015, the case of Obergefell v Hodges made the headlines of myriads of newspapers where the US Supreme Court had ordered striking down the all-state bans on same-sex marriage. It concurs that they had legalized same-sex marriages in all their 50 states, along with requiring the states to honour out-of-state marriage licenses.
Countries that champion equal marriage rights for homosexuals stand as beacons of progress and inclusion in today’s evolving world. These nations recognize that love knows no boundaries and that all individuals, regardless of their sexual orientation, deserve the fundamental right to marry the person they love. By embracing and legalizing same-sex marriage, these countries showcase their commitment to equality, human dignity, and social harmony. Their forward-thinking policies not only pave the way for a more just and compassionate society within their borders but also inspire hope and admiration across the globe. As they break down barriers and challenge outdated norms, these countries demonstrate the power of empathy and understanding in shaping a more accepting and equitable future for all.
Way Forward
Having established a wealth of evidence favouring marriage equality for homosexual couples alongside their heterosexual counterparts, it becomes imperative to extend this parity to other personal spheres. This entails ensuring equal rights encompassing inheritance, maintenance, divorce, and adoption. The attainment of parity in these realms not only stands as a testament to societal progress but also serves as a testament to the principles of justice and equality that underpin a just and inclusive society.
With these milestones achieved, the focus naturally shifts to fostering a more inclusive society for the LGBTQIA+ community. This brings us to our next objective: heightening awareness about sexual identity and its myriad manifestations. This crusade must commence from the most resistant enclaves, notably the rural and less cosmopolitan regions, wherein preconceived notions and stigmatized perspectives have historically been deeply entrenched.
In conclusion, the paramount objective remains the cultivation of a universally accepting environment for the LGBTQIA+ community. Continuing advocacy for equal rights of homosexuals is imperative to change the global perspective and foster a progressive society that is devoid of any discrimination, fear, and a sense of alienation. This endeavour signifies not only a commitment to justice but also an affirmation of the shared humanity that binds us all.
Conclusion
Marriage is undeniably a sacred and enduring relationship, an institution that fosters bilateral loyalty and equal access for all individuals. Courts have played a pivotal role in safeguarding the rights of couples, especially when their love defies societal norms. This legal protection has not only embraced adult couples into the institution of marriage but has also paved the way for the broader acceptance of love that transcends traditional boundaries.
The Supreme Court’s increased protection of inter-caste or interreligious marriages has had a ripple effect. It has led to the granting of police protection to same-sex couples who face the threat of familial backlash and the release of LGBTQIA+ individuals from illegal confinement. These actions mirror the protection provided to couples who choose to marry outside their caste, religion, or social dictates, emphasizing the judiciary’s commitment to ensuring the safety and rights of all citizens.
Furthermore, legislative recognition of live-in relationships as akin to marriage signifies the evolving understanding of the institution of marriage, aligning with or challenging societal beliefs. This evolution reflects a commitment to inclusivity and respect for individuals’ choices and relationships. In essence, the legal landscape surrounding marriage and relationships continues to evolve, striving to protect and honour the diversity of human connections, whether they conform to tradition or break new ground. This journey of legal and societal transformation emphasizes the importance of love, choice, and equality in our ever-changing world.