Tuesday, May 21, 2024

The Gender Bender

A Constitution Bench is hearing a bunch of at least 15 petitions regarding the legalisation of same-sex marriage. The bench said it will restrict itself to the Special Marriage Act, 1954, and not broaden the canvas. Through the pleas, the petitioners are seeking wider constitutional entitlements based on the right to life and personal liberty and other related rights.

By Dr Swati Jindal Garg

For all those who say that marriages are made in heaven, the larger question that remains is whether the marriage should necessarily be between a man and a woman? A Supreme Court bench, presided over by Chief Justice of India (CJI) DY Chandrachud, and comprising Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli and PS Narasimha, said the scope of hearing would be limited to developing a notion of a “civil union” that finds legal recognition under the Special Marriage Act.

The Special Marriage Act, 1954, according to the petitioners, is ultra vires the Constitution to the extent that it discriminates between same-sex couples and opposite sex couples, denying same-sex couples both legal rights as well as social recognition and status that flow from marriage. They further contended that the Act ought to apply to a marriage between any two persons, regardless of their gender identity and sexual orientation. If not, the Act, in its present form, should be declared violative of the fundamental rights to a dignified life and equality as “it does not provide for solemnisation of marriage between same-sex couple”.

Through the pleas, the petitioners are seeking wider constitutional entitlements based on the right to life and personal liberty, and other related rights. While the petitioners are being led by senior counsel Mukul Rohatgi, Solicitor General of India Tushar Mehta is representing the central government, which has repeatedly opposed the hearing on the ground that recognition of marriages is parliament’s call and contented the case be not heard at all since “only a biological man and a biological woman can enter into a valid wedlock”.

Mehta also emphasised the importance of involvement of states in the issue as the subject falls under the Concurrent List and argued that allowing same-sex marriage would result in the reading down or rewriting of an entire branch of law. It was also argued that the issue was outside the domain of the judiciary and examples of other countries which have taken the legislative route to allow same-sex marriage were given.

When Mehta submitted that the legislative intent of the Act has been a “relationship between a biological male and a biological female”, the CJI said, “there is no absolute concept” of a man or woman and the matter was not about “what your genitals are, it is far more complex”.

Rohatgi, on the other hand, emphasised the need for equal rights for the LGBTQ+ community to be acknowledged under the social institution of marriage. He also claimed that with the removal of Section 377 of the Indian Penal Code (IPC), criminality and the idea of being “unnatural” for the LGBTQ+ community were erased from the legal system, resulting in equal rights. Rohatgi then went on to state that if LGBTQ+ rights were truly identical, then all benefits of Articles 14, 15, 19 and 21 should be enjoyed. He asserted that individuals in the LGBTQ+ community desire the same privileges granted to others, such as privacy in their homes and escaping social stigma in public places, and therefore, marriage and family are sought after to gain respect and recognition in our society. Rohatgi said that being able to register marriages under the Act will lead to societal acceptance and elimination of stigma, enabling full and final assimilation.

Advocate Menaka Guruswamy, also arguing for the petitioners, said it is a question of an individual’s rights. “Marriage is a question of rights. I am not able to notify my partner for life insurance. I cannot buy insurance from the Supreme Court Bar Association for my family,” she said.

The Special Marriage Act was enacted in 1954 with an aim to bring in a legislation that regulates weddings which cannot be solemnized, owing to religious traditions, under the Hindu Marriage Act or the Muslim personal laws. This Act was implemented to create consistent legal safeguards for those who desire to marry across their own classes or religions. The Act further contains laws for marriage, marriage qualifications, dissolution of an interfaith marriage, marriage registration, and other rules, to protect their fundamental rights. The Act also intends to avoid the threat of social evils like honour killing, as well as to recognize the rights of children born from such marriages.

Even though the right to marry is not expressly recognized either as a fundamental or constitutional right, marriage is regulated through various statutory enactments and its recognition as a fundamental right has only developed through judicial decisions of the Supreme Court. While referring to Article 16 of the Universal Declaration of Human Rights and the Puttaswamy case, the Supreme Court held that the right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Court said: “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.” The right to privacy entails the right of the citizens to make decisions about their family life and marriage.
Though the State currently denies same-sex couples this right, it can be inferred that marriage laws are not mere policy matters, and with the decriminalising of Section 377 of the IPC, the government would need very strong reasons to justify why same-sex couples should be denied the right to marry. The said right can very well be granted under the Special Marriage Act, 1954, as it is a secular law which works alongside religious personal laws and already speaks of marriages between “any two persons” which are solemnised under it—any two persons can include two persons of the same sex.
Even though the Special Marriage Act makes several references to the terms “husband” and “wife”, the same can be justified under same-sex marriages as there will, of course, continue to be husbands and wives, with the only exception that sometimes there are two husbands or two wives. The main linguistic change necessary will be in clauses which use the definite article “the”. For example, the Special Marriage Act holds that separation can be presented by either the husband or the wife. Understanding this clause to refer to “a” husband or “a” wife would render the text compatible with constitutional rights.

Thirty one out of the 50 states in the United States have marriage laws that define marriage as between a man and a woman, but none of this matters in the light of the ruling in Obergefell vs Hodges (2015), wherein the Supreme Court of the United States held that same-sex couples have a constitutional right to marriage. Since the Netherlands’ legalization of same-sex marriage in 2000, more than two dozen countries have followed in the path they blazed for LGBT rights in the 20 years since the law’s passage. The year 2021, in particular, saw leaps in the realm of same-sex marriage and parental rights. In fact, as of December 2021, 33 countries across the globe had legalized same-sex marriages nationally or regionally through legislation or court decisions. Out of these, 23 countries had legalized same-sex marriage nationally through legislation while 10 countries had legalized same-sex marriage nationally through court decisions.

The stance of the Supreme Court of India in confining itself to the examination of the plea seeking legal recognition of same-sex marriage to the Special Marriage Act without in any way infringing upon different personal laws of the Hindus, the Muslims and the others seems to be a safe way of embarking upon a long and arduous uphill journey. Limiting the scope of the issue to the Act without touching upon other consequential issues, including adoption, the Supreme Court said that “it cannot decide everything before deciding anything”, leaving other issues to follow in due course of time for their resolution. The Court might be of the opinion that once it initiates this first dialogue, the rest will follow automatically as nothing in this world is more constant than change.

Despite the problems that it might present, legalising same-sex marriage is something that will at one point have to be done considering society’s march towards the new era. To learn things, unlearning is imperative. The process of learning and unlearning is a continuous cycle. Merely decriminalising same-sex relationships will not be enough if they are not given the protection of marriage laws. Marriage must be reinterpreted defying the Union government’s vision of “social morality”. An inclusive interpretation of marriage is a prerequisite to encourage plurality in the socio-political eco­system, as well as in the regulatory framework, and by legalising same-sex marriages, at least through the Special Marriage Act, the Supreme Court has set the ball rolling for Indian society to embrace the inevitable.

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi


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