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Hope, At Last

With the Court hearing pleas seeking recognition of same-sex marriages, hopes have been raised for the LGBTQIA+ community. While consensual, private same-sex relationships are legal, marriages are not.

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By Dr Swati Jindal Garg

They say that a perfect marriage is just two imperfect people who refuse to give up on each other. The recent decision of the apex court agreeing to hear petitions seeking legal recognition of same-sex  marriages raises hopes of securing another significant right for the LGBTQ community.

A bench led by Chief Justice DY Chandrachud recently asked the government to file its response within a month. This decision, coming four years after the Supreme Court scrapped the law criminalising gay sex, shows that the Court is ready to accept the fact that Indian society is changing and laws will also have to keep abreast. CJI DY Chandrachud, who is known for his progressive judgments especially those pertaining to LGBTQ and women’s rights, reportedly said: “Equality is not achieved with the decriminalisation of homosexuality alone but must extend to all spheres of life including the home, the workplace and public places.” 

One of the current petitions before the Supreme Court is by a gay couple based in Hyderabad who held a commitment ceremony last December to cement their nearly decade long relationship. “We still can’t say we are legally married. On any public platform, I cannot introduce Abhay as my husband. Marriage is important to an Indian family and I want my mother to be able to say that her son is married to Abhay,” said 32-year-old Chakraborty. “I have to still fill my status on all official forms as single, but I want the same rights and security that flow from legal marriages for straight couples. We don’t have any of that.”

The lack of legal recognition leads to a host of legal hurdles for same-sex partners such as the right to make healthcare decisions for spouses or rights to inheritance, etc., all of which were pointed out by Senior Advocate Mukul Rohatgi who appeared for the petitioners before the Court.

Even though the government feels that marriage necessarily depends upon “age-old customs, rituals, practices, cultural ethos and societal values,” and that same-sex marriages would “cause complete havoc with the delicate balance of personal laws in the country”, yet it cannot overlook certain facts. The thought process of society is becoming more liberal and many gay celebrities have also come out about their orientation. This, coupled with the fact that gay relationships are increasingly becoming acceptable, the day is not far when any legal embargo on the same shall be frowned upon by all.

This is not the first time that the Supreme Court is dealing with the question of same-sex marriages. On September 6, 2016, a five-judge Constitution bench of the Supreme Court in the landmark judgment of Navtej Singh Johar vs Union of India had  struck down those provisions of a 162-year-old colonial statute (Section 377 of the Indian Penal Code, 1860) that criminalised private and consensual same-sex activity between adults. One of the judges had remarked: “Sexual orientation of a person is an essential attribute of privacy…The right to privacy is broad-based and pervasive under our Constitutional scheme, and encompasses decisional autonomy, to cover intimate/personal decisions and preserves the sanctity of the private sphere of an individual.” 

Multiple petitions are pending before the Delhi High Court as well as other High Courts seeking to recognise same-sex marriages under the Special Marriage Act, Hindu Marriage Act and Foreign Marriage Act among others.

In response to these petitions, Solicitor General Tushar Mehta, appearing on behalf of the government, said that the term “spouse” and “marriage” in the Citizenship Act referred to heterosexual couples only, and hence, de facto, excluded same-sex couples. He also went on to state that the Navtej Singh Johar judgment decriminalised private, consensual same-sex activity between adults, but did not discuss public, consensual same-sex activity, and hence, could not be attributed to granting homosexual people marriage rights. The law ministry had also remarked that “legitimate State interest” lay in limiting the institution of marriage to those of the opposite sex only to preserve “social morality”. 

The Apostolic Alliance of Churches and the Utkal Christian Council—two groups that opposed the reading down of Section 377—had also put on record that “the decriminalisation of Section 377 IPC will open a floodgate of social issues which the legislative domain is not capable of accommodating as same sex marriages would become social experiments with unpredictable outcome”. This argument might not have swayed the Supreme Court when it decriminalised Section 377, yet the argument persists given the reluctance of the Delhi High Court in recognising marriages for same-sex couples.

At the time of passing the Navtej judgment, the apex court might have made it clear that consensual and private same-sex activities between adults did constitute an essential part of one’s privacy. However, it did not make explicit the distinction between the private and public sphere. At that time, a lot of stress was placed by the Court on the social ostracisation and humiliation faced by the Indian LGBTQIA+ community, but by limiting itself to the domain of the private sphere, it left open certain questions. These included whether the determination of marriage was public or private; after all, marriage can be both a private and public affair, just like sexuality. Marriage can be private when it is seen as an intimate coupling of two people, and it can be public when it is celebrated as a collective union of two people and two families. Moreover, if hostility to LGBTQIA+ people comes from both the public and private sphere, why should positively affirming rights be restricted only to the private sphere leaving the public sphere undetermined?

Opposition to decriminalising homosexuality in India has come from representatives of multiple religious groups over the years. Hence, it has also been suggested that same-sex marriage advocates should not stress on amending personal laws; instead, they should focus on either amending secular legislation like the Special Marriage Act (which facilitates marriages between people of different religions, or those who don’t want to be bound by their religion’s personal laws) or reading down the Special Marriage Act as unconstitutional on the grounds that it discriminates against sexual and gender minorities. 

This is the stand also being taken by the petitioners before the Supreme Court today. While this approach may sound feasible, it doesn’t address the larger question—the failure of our legal system (and society) to properly remedy the glaring contradictions between fundamental rights on the one hand and gender/sex discrimination under personal laws on the other.

The other question that will immediately follow the amendment if ever of the Special Marriage Act is why should homosexual people be constrained to seek legal recognition outside the purview of religion? These are some complicated questions that courts across the world are still trying to answer. Social morality plays an important role in determining how the courts behave.

The Netherlands was the first country to legalise same-sex marriage more than 20 years ago; 31 countries have followed suit. But the fact is that being identified as LGBTQIA+ is still illegal in 70 countries, with some even prescribing death penalty for homosexuality. The Indian stance is somewhere in the middle as with a watered down Section 377, it is no longer a crime to enter into adult, consensual and private same-sex relationships, but same sex marriages are not accepted by law.

It must also be mentioned that in Arunkumar and Anr. vs The Inspector General of Registration and Ors (2019), the Madras High Court had upheld a Hindu marriage between Arunkumar (a cisgendered man) and Sreeja (a transgender woman). Even at that time, the stance taken by Justice GR Swaminathan was that the term “bride” in Section 5 (conditions for a Hindu marriage) of the Hindu Marriage Act must not have a static meaning; rather, it had to be reinterpreted in the light of changing socio-cultural norms to also include transwomen, intersex people and other transgender people who identified as women. The Court had further recognised the existence of multiple gender identities. While it did not discuss same-sex marriage in its judgment, it did uphold the validity of marriages across genders.

Considering that the Supreme Court has already determined the right to marry a person of one’s choice in the famous Hadiya Case, it is the right time to take this discussion forward and deal with the question of whether non-traditional homosexual marriages should be recognised or not. As courts have already approved marriages between non-traditional heterosexual individuals, they have a tough decision before them because if they decide against the validity, they will find themselves on the wrong side of history.

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

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