The policing of love has always been an extricable element of India’s long legal history, whether it is in terms of caste, religion or race. Complex orthodox social forces have been at play for time immemorial, regulating and sanctioning individual identities and relationships, sometimes by extraconstitutional means. Legally, inter-caste, inter-faith and inter-racial marriages have found legitimacy, but the same cannot be said for sexual orientation. On 6 September, 2018, the Supreme Court, in Navtej Singh Johar v. Union of India (‘Navtej’) read down Section 377 of the Indian Penal Code, to decriminalize same-sex relationships, liberating millions of closeted queer Indians. While this was a major victory, queer couples still face discrimination due to the lack of socio-legal recognition. Because they cannot get married, same-sex couples face troubles when it comes to adoption, inheritance, tax, insurance and more. This article provides an overview of the concept of marriage equality in India and its importance. It also looks at the constitutional foundations for bringing about marriage equality in India. Finally, it concludes with a discussion of the priorities of the LGBT community at the moment, and how marriage equality, while not the most important thing, will go a long way in promoting India’s dream of equal rights.
Marriage Equality: Its Meaning and Importance
Marriage equality is a legal concept that seeks to accord legal legitimacy to unions that fall outside the ambit of traditional heterosexual marriage between consenting cis-gendered adults. It is definitely a much more difficult milestone to reach, than decriminalization. This is because, India has always been, "a marriage country." Marriage is at the focal point of both religion and society. It has always been in a central and celebrated position, and it has always been heteronormative. The UDHR and several international covenants have recognized the right of individuals to marry and found a family as an essential human right. Discriminating the availability of this right on the basis of sexual orientation and gender identity violates individual dignity and humanity.
The right to marry is important for several reasons, but most significantly, for the associated legal rights and duties, be it in the form of maintenance, protection against domestic violence, or inheritance, insurance, tax benefits, etc. The State extends these civil liberties to relatives and spouses. The problem thereunder, lies in the fact that a spouse in law can only be someone of the opposite sex. On the social front, marriage equality relates to the inclusion of non-heteronormative relations within the complex family-centric values that we hold dear. This means, socially recognizing and sanctioning same-sex couples.
Personal laws do not explicitly exclude same-sex couples from legal recognition. None of the codified personal marriage Acts (Hindu Marriage Act, Indian Christian Marriage Act, Special Marriage Act, etc.) expressly define marriage as between a man and a woman. However, they all have very strong "heteronormative underpinnings" and over the years, have been interpreted in a manner that does not recognize same-sex unions. Resultantly, the legal implications in terms of rights are that LGBT couples cannot adopt children, cannot name their partners as legal heirs, cannot claim maintenance at the time of separation, etc. In fact, as their relations lack any legal legitimacy, same-sex couples also face issues in opening joint-bank accounts. Since they do not technically fall into the definition of “family”, they also are debarred from hospital visitations. These are just some of the many hurdles that India’s LGBTQIA community faces from a lack of being able to be legally married.
Challenging the Heteronormative Overtones of Marriage
In January 2020, a writ petition was filed in the Kerala High Court by Sonu MS and Nikesh Usha Pushkaran who were wedded in a temple in July 2018 but were discriminated in that they do not possess the same legal rights other heterosexual couples do. To this date, the opposition to marriage equality has resonated the notion that legitimizing non cis-het relationships would damage the family system which lies at the heart of social culture, and breakdown the institution of marriage. However, a person's sexual orientation is an intrinsic facet of their identity. To disregard the same by institutionalizing discrimination on the basis of innate identities is violative of the Constitution and constitutional morality.
The challenge to personal laws that delegitimize same-sex unions has evident constitutional backing. While sexual orientation is not explicitly mentioned as a protected category of discrimination under Article 15, discrimination on the basis of sexual orientation, is inherently, a form of sex discrimination, which is prohibited. The Supreme Court in National Legal Services Authority of India v. Union of India ('NALSA') concluded that sexual orientation fell within the spectrum of sex in Article 15. Further, 'person' under Article 14 was taken to be a gender-neutral term. Thus, it concluded that sex discrimination under both these articles also outlaws discrimination on the basis of gender identity and sexual orientation. To put it logically, discrimination on the basis of sexual orientation, at its core, is discrimination on the basis of the gender identity of two partners. Sexual orientation, is inseparable from sex. The reason a gay man is denied the right to marry, is because the person he wants to marry is also a man.
Restricting marriage to heterosexual couples has no logical, legal or social justification. The long-held belief that marriage and sex exist for procreation was effectively dismantled in Navtej. If that was the case, then marriage between infertile, diseased, menopausal or aged heterosexual individuals would also be void. In a post Navtej world, the argument that homosexuality is unnatural would also not stand. Nor can discrimination be justified on grounds of marital tradition and customs as these notions of social morality are offset by constitutionally entrenched principles of equality, autonomy, free expression and privacy.
Marriage equality also forms an essential facet of the fundamental right to privacy and autonomy (as laid down in K.S Puttaswamy v. Union of India ('Puttaswamy'). In this case, Justice Chandrachud, expressly included sexual orientation as a component protected under the right to privacy and Articles 14, 15 and 21. An individual has the prerogative and right to engage in sexual relations on their own terms and exercise their agency. Necessarily, this includes the choice of partner and the autonomy to decide the nature of the relationship. Institutional non-recognition of marriage between same-sex couples violates a person’s autonomy to define the relationships they enter, and signifies State involvement in intimate personal matters.
Marriage equality also furthers the right to live with dignity, espoused in Article 21. In a family-run society like India, often the only sexual relationships that receive social acknowledgement are the ones that are forged or cemented by marriage. Thus, by refusing to recognize marriage between two consenting same-sex persons, the State tends to force people to hide their relationships and live secret lives, an inhibition which is clearly violative of the right to live a dignified existence.
The several constitutional prongs that have been briefly elucidated, clearly show that restricting marriage to 'one man, one woman' completely goes against the ethos of the constitution and the interpretation of its protections evolved by the Supreme Court. With the recognition of the superiority of constitutional morality (Navtej) over social or popular morality, there has been envisaged a degree of tolerance and rationalization of difference especially vis-a-vis sex, gender and sexual orientation, concepts that are still rather alien to the populace. Although marriage lies at the core of our society, it cannot be restricted by giving higher regard to existing orthodox socio-religious forces, but must be opened to all individuals, in tandem with our constitutional principles.
However, despite all above-stated arguments in favor of marriage equality, the author fiercely believes that the legitimacy and vital nature of marriage as an inherently oppressive and fundamentally patriarchal institution needs to be seriously reworked, on the road to marriage equality. Abolishing marriage altogether is a far-fetched dream in India which is ardently a “marriage country” and social relations outside the orthodox confines of kinship are seldom given full-fledged socio-legal recognition.
Further, although legalizing same-sex marriage would be a significant victory for the Indian LGBTQ community, it barely scratches the surface when it comes to the problems faced by queer folk every day. While equality of marriage is important, one is forced to consider whether it is a priority when queer folk face far more pressing issues like the lack of job security, systematic unemployment, ostracization from their homes (and thereby, need of shelter), opportunities for higher education, etc. The struggle for marriage equality has especially overshadowed LGBT issues in intersectional communities. However, the issue surrounding marriage equality in our country and many others, is not whether marriage equality is a priority but rather, that there should be no legal barriers to same-sex marriage. The central notion of inequality lies in the fact that laws find arbitrary and unequal application on the basis of an intrinsic identity of people. It is not a case of having to choose one campaign over another. In India at least, when so many associated human rights are associated with marriage, equality cannot be relegated to the back burner. But it also need not occupy the forefront, and especially not as the sole and top priority.
Regardless, while the road to marriage equality may be long and laborious, it is one that can be constructed. Whether the same can be said about organic social change, is a question only time can answer.
Title Image source: Afro Mambo
This article has been written by Deeksha Balaji, a second-year student from the National University of Juridical Sciences, Kolkata. She takes keen interest in writing and researching related to Human Rights and Constitution related topics.