Same-Sex Laws Must Meet Needs Of Natural Justice

The Supreme Court (SC) has transferred to itself several petitions pending in various high courts seeking legal recognition of same-sex marriage as there was broad consensus among the petitioners to shift the cases to the Apex court for an authoritative ruling on whether the marriages could be brought within the ambit of the Special Marriage Act of 1954. This is considered the most obvious sequel to the 2018 Constitution Bench judgement in the Navtej Johar case in which Section 377 was read down by the SC. 

Batches of petitions filed in the Delhi, Kerala and Gujarat High Courts include one filed by Supriyo Chakraborty and Abhay Dang saying the non-recognition of same-sex marriage amounted to discrimination that struck at the root of dignity and self-fulfilment of LGBTQI+ couples.

Another filed by Utkarsh Saxena and Ananya Kotia challenges the mandatory requirement to issue public notice and objection to marriage contemplated under the Special Marriage Act and the Foreign Marriage Act, which they maintain, expose same-sex couples to the risks of ostracism, persecution, and violence. 

Saxena and Kotia, who have been living together for 14 years, said such provisions act as a deterrent to already vulnerable same-sex couples, who are forced to publicise their relationship and risk ostracism, persecution, and violence.

Sections 5-9 of the Special Marriage Act require a notice period of 30 days to be provided to the Marriage Officer of the District in which one of the parties has resided. “Any person” is vested with the authority during such notice period to object to the solemnisation of the marriage.

Foreign Marriage Act’s Sections 5-10 also set out an identical “notice and objections” regime.

The petitioners contend these provisions impose undue burdens upon parties’ right to intimate decision-making and constitute a disproportionate invasion of citizens’ right to privacy.

The plea further seeks to make the provisions of the Special Marriage Act and Foreign Marriage Act gender-neutral and apply to all relationships.

A few pivotal issues that are sought to be addressed through the Supreme Court include, firstly, whether same-sex marriages can be brought under the Special Marriage Act; secondly, whether 'issues of notices’ and 'objections' present a 'disproportionate' invasion of a citizen's privacy and thirdly, whether the provisions of Special Marriage Act and Foreign Marriage Act can be made gender-neutral to apply to all.

Broadly speaking, unless the Supreme Court addresses issues pertinent and with far-reaching repercussions to the community, the processes of litigation will be shrouded with short-sighted analysis and attempts for short-term validation that fail the test of time. Like was the case with Section 377 fought tooth and nail only to be, and rightly too, read down by the Supreme Court and not ‘struck down’ as widely (mis)understood. If then, the issues pertinent to the stakeholders, such as marriage, adoption, guardianship, etc., were brought before the court, they could be addressed back in 2018.

However, again the matters before the Court will have it, interpreting the law and not making law. So, for one, the Special Marriage Act was, on the face of it, created to facilitate marriages between men and women of different religions who could not get married in accordance with their 'Personal' laws. To stretch it to beyond the legislator's intended meaning, would be to amend the definitions as laid down by the legislators and 'make law,' which the Supreme Court seem less likely to attempt. 

Now, to render the entire Special Marriage Act unconstitutional as an alternative, and getting the Apex court to do so instead of a first preference may not work. The 'issue in contention' before the Supreme Court must be to analyse the Constitutionality of the law and not of an ‘issue as an option’. There is already an inbuilt Presumption of Constitutionality associated with the legislation laid down. Courts usually examine the viability and do not declare the law unconstitutional.

Secondly, the need for a 'notice' and a provision for 'objection' is derived from the realm of natural justice and an extension of 'justice, equity and good conscience.' In cricket, the batter must be in position and ready to face the ball before the bowler releases the ball; failing this, it is called a 'no-ball' by the umpire, even if it lands up toppling the bales. A notice, usually, even precedes an arrest to provide the accused an opportunity to defend himself. Why does even the court issue a notice to the parties in question before passing an order or a judgement?

To do away with the procedures of notice and objections, as laid down in law to help protect the rights of an 'existing partner' unaware of the 'new alliance' and quash attempts to change equations and create liabilities, is wrong. It does a disservice to the very institution of marriage, even to same-sex individuals. Now, as for the issue of privacy being affected adversely following the compliance with notice and objection, aren't the same-sex individuals seeking to publicise their own alliance by registering it with the State? 

The real issue is ‘acceptance’. In a society like India, where same-sex relationships are looked down upon, forcing acceptance from the government or the judiciary is of little consequence. Social acceptance requires reform and not amendment in legislation. Without a doubt, there is a need for it and a long-pending one too at that.

And finally, comes the new-found need for gender-neutral marriage laws and gender-neutral laws on adoption, guardianship, divorce, alimony etc. The laws on all things reaching out to varied genders and sexualities and affecting them directly or obliquely need to change; and, that includes 'all' laws. Not just those related to same-sex marriage or stakeholders of same-sex alliances. 

Because that would be like striking down Section 377 which stayed and rightly so. The Section, perceived as being an archaic homophobic law is, paradoxically, the only one available in the Indian Penal Code to provide penal action against same-sex offenders! 

Section 375 even with its expansions through an amendment to include aggravated offences against minor girls, aggravated punishments and expansion in the definition of 'penetration,' is restricted to rape offences by males against females only.

(The author is based out of Mumbai. He is the Founder of think tank DraftCraft International, the Founding Editor of the news portal The Draft, the Founding Solicitor of The Chamber Practice, and Producer at DraftCraft Films)