All human beings are born free and equal in dignity and rights. 1
‘Love is Love’. It is not seldom that we come across this phrase in our daily lives and on social media. It implies that love, irrespective of who it flourishes between, is love. All love is equal and deserves equal respect.
The decriminalization of Section 377 by the Supreme Court of India in the case of Navtej Singh Johar v. Union of India2, to the extent that carnal intercourse ‘against the order of nature’ between consenting adults is no more a criminal offence, was a huge leap forward in recognizing and acknowledging the existence and identity of homosexual couples. But this is the bare minimum. Recognizing the existence of a class of citizens, notwithstanding how small a part of the population they form, does not, in any way, justify depriving them of their fundamental rights. To completely do away with the discrimination and scrutiny faced by queer couples, it is important to normalize same sex relationships, the first step towards which should be the recognition of homosexual marriages, thus giving them the same social footing as heterosexual couples, at least legally. Despite the right to marry and right to a partner of choice being declared a part of Article 21 of the Constitution in numerous cases, same sex marriages are still not recognized in India, which stands in violation of the fundamental rights guaranteed to all citizens, irrespective of their religion, race, caste, sex, place of birth, sexual orientation and gender identity.
“Marriage is a legally and socially sanctioned union, usually between a man and a woman, that is regulated by laws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners”3
The Right to marry a partner of one’s choice, is not expressly provided for in our Constitution, although it does find place in international covenants like the Universal Declaration of Human Rights4, the International Covenant on Civil and Political Rights5 etc. However, the Indian judiciary has time again, stated that the right to marry and the right to a partner of one’s choice are a part of the Right to life and personal liberty under Article 21 of the Constitution. The earliest such example is the case of Lata Singh v. State of U. P6, wherein the Supreme Court ruled that a person who is not a minor has the right to marry whoever they desire. Later, in Shakti Vahini v. Union of India7 it was again stated that two adults, consensually choosing each other as their life partner, is in the exercise of their freedom of choice and expression under Article 21 and 19 of the constitution. Therefore, the freedom of choice in matters relating to pursuit of happiness is intrinsic in an individual’s personal liberty.8
Although same sex marriages are not expressly prohibited in India, they lack the legal recognition and regulation that heterosexual marriages enjoy. Thus, although a homosexual couple may get married and live together, they are not recognized under law as lawfully wedded, and have no recourse to enforce the rights that come with a legal marriage.
When the right to marry a partner of one’s choice has repeatedly been upheld as a fundamental right for heterosexual couples, denying the same right to same sex couples and other members of the LGBTQ+ community, despite homosexual relationships being legally recognized in Navtej Singh Johar9, and non-binary gender identities being legally recognized in the NALSA judgement10, is gross violation of the community’s fundamental rights. It is denying an entire class of citizens the basic rights guaranteed to them under the Constitution of India.
It is a well-established principle of law that to qualify as a reasonable classification, hence not violative of right to equality as enshrined in Article 14 of the Constitution, two tests have to be fulfilled, (i) that the classification must be based on intelligible differentia, (ii) the differentia must have a rational nexus to the object sought to be achieved by the legislation. According to D.Y Chandrachud, J. this classification bases the test for equality on a strict formula, and ignores the fact that Article 14 contains within itself a powerful statement of value, that all citizens have the right to equality before law and equal protection of law.11
Besides, the existing marriage laws in India fail to establish a reasonable nexus between the classification and the object sought to be achieved. The Hindu Marriage Act, for example, states that it is ‘an act to amend and codify the law relating to marriage among Hindus.’12 It should be immaterial whether the two Hindus are of the same sex or opposite sexes, and the classification between homosexual and heterosexual couples does not seem to be reasonable. Similarly, the Special Marriage Act is ‘an act to provide a special form of marriage in certain cases, for the registration of such and certain other marriages and for divorce.’13 The object of the Indian Christian Marriage Act is to simplify and consolidate the laws relating to solemnization in India of marriages of persons professing the Christian religion.14 Likewise, the object of Foreign Marriage Act is ‘to make provision relating to marriages of citizens of India outside India’15. The object of all these legislations is stated to be to regulate marriages between citizens of a caste or community, in or outside India. Thus, the object of the legislation seems to have no nexus to the classification created between heterosexual and homosexual couples. Therefore, denying the LGBTQ+ community, the right to enter into a legally recognizable marriage, is in violation of the right to equality guaranteed by the Constitution of India.
Article 15 of the Constitution of India prohibits discrimination on the grounds of sex. The Apex Court has stated that a formalistic interpretation of Article 15, that it prohibits discrimination on the ground of sex only, would render the constitutional guarantee against discrimination meaningless, and interpreted the Article to be include protection against discrimination on ground of sexual orientation and identity as well.16
Further, Article 19(1)(a) of the Constitution of India guarantees to 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, action, behaviour, or any other form.17 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.18 It is apparent that none of the above parameters seem reasonable enough to not legally recognize marriage between people of the same sex, except the ground 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 basis of restriction upon Article 19, should not be amplified beyond a rational or logical limit19. 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.20 It is submitted that a marriage is a union between two individuals. It does not concern or in any way, directly harm, another person, or the society at large. According to Bentham, homosexuality is a neutral behaviour which gives the participants pleasure, and does not cause harm to anyone else.21 The only justification for the exercise of power over a member of a civilized society against his will, is to avoid harm to others.22 According to Mill, a person cannot be made to do or not to do something, because according to others, it would be what is right.23
Therefore, depriving homosexual couples from entering into legally recognizable marriages is a gross violation of the rights guaranteed to them under Articles 14, 15, 19, and 21 of the Constitution of India.
Broadly speaking, a social movement is a ‘loosely organised but sustained campaign in support of a social goal, typically either the implementation or a change in the society’s structure or values.’24. The LGBTQ+ movement in India is a constant struggle of the said community to bring about a change in the nation’s heteronormative ideas and the laws. The community looks up to the state to bring about a change in the social structure. It raises the issue of self-identity and urges the authorities to redress their grievances by providing them the rights and protection that they, as citizens of this country, deserve.
Keeping in mind the inherently ‘straight’ ideas and beliefs that are common in the country, the mental and emotional agony that an individual must face, upon realizing that their ideas and desires do not conform to what is socially expected and accepted, cannot be fathomed. In light of this, belonging to the LGBTQ+ community must give a newfound sense of empowerment and reaffirmation to one’s sense of identity.25 But once an individual overcomes the initial tumult within themselves, and in some cases, the internalized homophobia that comes with years of being fed with heteronormativity, they have to face the reality, that is, a struggle for the rights that a heterosexual child is born with, and for social recognition and acceptance of identity.
The emergence of the LGBTQ movement in India is the rise of new sexual identities, which were earlier trapped under the heterosexual norms of the ‘straight’ society. It is not a newfound ‘lifestyle choice’- because why would an individual choose to live a life that puts them under the threat of estrangement of family and societal discrimination? In fact, homosexuality has always been around, the sculptures engraved at Khajuraho providing undeniable visual evidences. In India, the LGBTQ+ community has been organising pride parades since the year 2000, but the recent shift in the scale of the movement is in the wake of the decriminalisation of Section 377, which gives the community the legal recognition and backing to demand their rights, and the access to trans-borders literature and experiences that has spread awareness and acceptance towards the community among the youth, and acts as a boost in morale of the community in India, among other things. The society has started to acknowledge the existence of more than one form of sexual attraction, and it is time the legislature does the same.
The most common argument against legal recognition to LGBTQ+ marriages is that the Indian society, unlike that in the west, is not ready to accept such unions yet, and such marriages would be against public morality and decency. It has already been established above that public decency and morality cannot be grounds to deprive someone of their fundamental rights, beyond a certain extent. It is further submitted that society is dynamic, and so is our Constitution. Society evolves with time, and our laws should keep up with this evolution. With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today.26 There used to be a time when love marriages, inter caste marriages, and marriages outside one’s community were considered immoral, yet the Special Marriage Act was passed, providing for registration for these ‘special kinds of marriages’. Live in relationships are not socially accepted even today, yet, the judiciary has, time and again, given legal recognition and protection to live-in-relationships.27 If the society is not accepting of a class of people exercising their rights, it is the society that should be sensitized, and not the other way round. The first and most important step towards this would be normalizing same sex couples and not look upon them as something that is unnatural.
Another argument that we come across often, is that same sex couples cannot procreate. This argument assumes that intercourse is done only for the purpose of bearing children, and reduces the basis of marriage as mere procreation. Additionally, if this argument were to be accepted, it would lead to imply that an infertile person, or a person incapable or unwilling of having children, should not be allowed to get married either. Does this argument also stand strong in favour of banning methods of birth control altogether?
An argument raised in Suresh Kumar Koushal28 against decriminalizing Section 377 was that the LGBTQIA+ community forms a minority of the population. However, the size of the population concerned should not be a ground for depriving them of their basic fundamental rights.
It is not uncommon to come across the argument that legalizing same sex marriages would influence others into homosexual behaviour as well. If this logic were to be true, then considering the heteronormative ideas that young individuals in India are brought up with, the LGBTQ+ community as a whole would not exist in India. Yet these people exist and continue to raise their voices against the discrimination faced by them.
It is high time that same sex marriages in India me provided legal recognition. The need can be fulfilled in either of the three ways:
The LGBTQ+ community forms a considerable part of the population of India. They are as much the citizens of this country, as the heterosexual population, and have waited long enough for the society and the law to acknowledge their existence, respect their identity, and protect their rights. While it is true that legal reform by itself is not enough to redress the deep seated structural oppression, giving legal recognition to marriages within this community should be the first step towards normalizing same sex relationships and giving them the respect and dignity that they, as citizens of this country, deserve.