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Decriminalizing homosexuality one thing, allowing same-sex marriage another: Centre affidavit in Delhi High Court

In an affidavit to the Delhi High Court, the centre said that decriminalisation of Section 377 of the IPC does not automatically translate into the fundamental right to marry for same-sex couples.

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By India Legal Bureau

The centre has sought dismissal of pleas to recognise same-sex marriages under the Special Marriage Act. It claimed that same-sex couples living together as partners and having a sexual relationship is not comparable to the Indian family concept of a husband, wife and children.

Opposing a batch of petitions seeking legal recognition of same-sex marriages, the centre in an affidavit on February 25 told the Delhi High Court that decriminalisation of Section 377 of the Indian Penal Code does not automatically translate into the fundamental right to marry for same-sex couples.

The centre submitted that

“registration of marriage of same-sex persons also results in violation of existing personal as well as codified law provisions such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under the personal laws governing the individuals”.

Referring to the Supreme Court verdict in Navtej Singh Johar vs Union of India case, which struck down Section 377, the centre argued that it was “only a limited declaration to decriminalise a particular human behaviour, which was a penal offence under Sec 377 IPC”. It further stated that neither the Puttuswamy judgment (one of India’s most noted privacy cases) nor the Navtej Singh Johar case allows for the recognition of marriage between individuals of the same gender.

The centre went on to dispute the fact that the right to marriage falls within the right to privacy of an individual and stated: “While a marriage may be between two private individuals having a profound impact on their private lives, it is submitted that marriage, as a public concept, is also nationally and internationally recognised as a public recognition of relationship with which several statutory rights and obligations are attached.”

The division bench of Justices Rajiv Sahai Endlaw and Amit Bansal was hearing three separate petitions by same-sex couples seeking to declare that the Special Marriage Act and Foreign Marriage Act ought to apply to all couples, regardless of their gender identity and sexual orientation.

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One of the petitions was filed by two Delhi-based mental health professionals, Dr Kavita Arora and Ankita Khanna, on October 5, 2020. Another was filed by US-based Vaibhav Jain and Parag Mehta, who demanded registration of their marriage under the Foreign Marriage Act. Jain is an Indian citizen, while Mehta is an overseas citizen of India. The third PIL, for recognition of same-sex marriages under the Hindu Marriage Act, was filed by defence analyst Abhijit Iyer Mitra and three others.

Section 377 was introduced by the British and modelled on the Buggery Act of 1533. This Section of the Buggery Act was drafted by Thomas Macaulay in 1838 and brought into effect in 1860.

Over the years, Section 377 has sparked numerous controversies, with activists challenging it numerous times. In 2001, Naz Foundation filed a petition challenging the constitutionality of Section 377 in the Delhi High Court. The Court dismissed the petition, saying the body had no standing in the matter. Naz Foundation appealed to the Supreme Court in 2006, which instructed the Delhi High Court to reconsider the case. In a landmark decision, the Delhi High Court decriminalised homosexuality among consenting adults, holding the 149-year-old law violative of Articles 14, 15 and 21 of the Constitution. After this judgment, various appeals were made to the Supreme Court, challenging the High Court’s authority to change a law. In December 2012, the Supreme Court overturned the High Court’s decision after finding it “legally unsustainable”. The Supreme Court then recommended that Parliament address the matter because only it had the power to amend existing laws.

On December 18, 2015, Shashi Tharoor introduced a private member’s bill to decriminalise homosexuality, but the Lok Sabha voted against it.

Lesbian, gay, bisexual and transgender (LGBT) rights in India have evolved in recent years. However, Indian LGBT citizens face social and legal difficulties not experienced by non-LGBT persons. Same-sex sexual activity was decriminalised in 2018. The country has repealed its colonial era laws that directly discriminated against homosexual and transgender identities and also explicitly interpreted Article 15 of the Constitution to prohibit discrimination on the basis of sexual orientation and gender identity. But many legal protections have not been provided for, including same-sex marriage.

The home ministry on February 23, 2012, expressed opposition to the decriminalisation of homosexual activity, stating that in India, homosexuality was seen as immoral. The government reversed its stance on February 28, 2012, asserting that there was no legal error in decriminalising homosexual activity. The shift in stance resulted in two judges of the apex court reprimanding the government for frequently changing its approach to the issue.

On February 2, 2016, the Supreme Court decided to review the criminalisation of homosexual activity. In August 2017, the Court ruled that the right to individual privacy is an intrinsic and fundamental right under the Constitution. The Court also ruled that a person’s sexual orientation is a privacy issue, giving hopes to LGBT activists that it would soon strike down Section 377.

In January 2018, the Supreme Court agreed to refer the question of Section 377’s validity to a large bench, and heard several petitions on May 1, 2018. In response to the Court’s request for its position on the petitions, the government announced that it would not oppose them, and would leave the case “to the wisdom of the court”. A hearing began on July 10, 2018, and a verdict was expected before October 2018. Activists view the case as the most significant and “greatest breakthrough for gay rights since the country’s independence”, and it could have far-reaching implications for other Commonwealth countries that still outlaw homosexuality.

The Supreme Court gave its verdict on September 6, 2018. The Court unanimously ruled that Section 377 was unconstitutional as it infringed on the fundamental rights of autonomy, intimacy and identity, thus legalising homosexuality in India. The Court explicitly overturned its 2013 judgment.

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With several countries revising their marriage laws to recognise same-sex couples, all major English dictionaries have revised their definition of the word marriage; they have either dropped gender specifications or supplemented them with secondary definitions to include gender-neutral language or explicit recognition of same-sex unions. The Oxford English Dictionary has recognised same-sex marriage since 2000.

There are differing positions regarding the manner in which same-sex marriage has been introduced in democratic jurisdictions. A “majority rules” position holds that same-sex marriage is valid or void, based on whether it has been accepted by a majority of voters or their elected representatives.

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