Same-Sex Marriages In India: The Defeat Of Constitutional Morality

Shakespeare through one of his characters in a play says ―What‘s in a name? That which we call a rose by any other name would smell as sweet. The said phrase, in its basic sense, conveys that what really matters is the essential qualities of the substance and the fundamental characteristics of an entity but not the name by which it or a person is called. Getting deeper into the meaning, it is understood that the name may be a convenient concept for identification but the essence behind the same is the core of identity. Sans identity, the name only remains a denotative term. Therefore, identity is pivotal to one's being. Life bestows honour on it and freedom of living, as a facet of life, expresses genuine desire to have it. The said desire, one is inclined to think, is satisfied by the conception of constitutional recognition, and hence, emphasis is laid on the identity of an individual which is conceived under the Constitution. And the sustenance of identity is the filament of life. It is equivalent to authoring one‘s own life script where freedom broadens every day. Identity is equivalent to divinity.

The above narrated paragraph is a part of Navtej Singh Johar vs Union of India, the judgement in which Section 377 of IPC was decriminalised by the Supreme Court (SC) in 2018. But before that, the saga of this roller-coaster ride began in 2009 when the Delhi High Court in Naz Foundation vs Government of Nct Of Delhi for the very first time recognised the rights of “gender nonconforming” people. Interpreting the scope of Article 21, which confers right to life and liberty, the High Court opined that right to life includes right to live life with ‘dignity and privacy’. Fanning equality jurisprudence, High Court said that Section 377 is violative of Article 14, because it unreasonably discriminates with homosexuals as a class of people and criminalises their consensual sexual practices. Explaining Article 15, High Court further said discrimination on grounds of sex is prohibited, here the court said sex doesn’t mean only biological sex but also sexual orientation as well. 

The Naz Foundation case held the view that Section 377 has to be declared unconstitutional but left the amending part to parliamentary wisdom. However, for years parliament took no step to amend Section 377 to decriminalise homosexuality. And in December 2013, the progressive judgment of Delhi High Court was sniffed by Supreme Court in Suresh Kumar Koushal & Anr vs Naz Foundation & Ors upon two grounds; first, court said homosexuality is a criminal offence, only parliament can decriminalise it and it is beyond the competency of the court to interfere; second, the court said, right to privacy can’t be extended to a point where a criminal offence can be committed under it. 

It was the NALSA judgement in 2014, where for the first time the Supreme Court recognised multifaceted rights for transgenders under the constitutional provision. The Supreme Court said all the laws are focusing upon binary gender (male/female) only and there is no provision for the protection of transgenders. The Supreme Court said under Article 14, every one’s right is protected, be it men women or transgender. Further the court said gender-based discrimination under Article 15 and 16 is prohibited and if certain discrimination comes into forefront based on ‘sexual orientation’, this is against the tenets of aforesaid Articles. Broadening the horizon of Article 19(1)(a), Supreme court said ‘privacy’ and ‘gender identity’, is also protected under the constitutional provisions. Explaining Article 21, the Court said, ‘right to live with dignity’ also includes ‘right to choose gender identity’. Because of the NALSA judgement, 'self-identity’ and ‘gender identity' got legal recognition for the first time. 

In 2017, Justice K.S. Puttaswamy v. Union of India, Supreme Court affirmed that right to privacy is a part of the fundamental rights and sexual orientation is an essential attribution of right to privacy. 

Finally in 2018, Supreme Court decriminalised Section 377 to the extent of criminalising consensual sex practices amongst homosexuals through its judgement in Navtej Singh Johar vs Union Of India. In this judgement, the Supreme Court largely upheld the jurisprudence of the Naz Foundation judgement pronounced by Delhi High Court. 

Constitutional Morality and the Current Judgement 

The interpretation of constitutional morality in terms of “gender nonconforming” people’s right begins with the Naz Foundation judgement. Leading constitutional scholar Gautam Bhatia in his book Transformative Constitution A Radical Biography in Nine Acts citing the judgement of Naz Foundation argues that the desire to enforce certain morality, can’t constitute public interest, and criminal law can’t enforce private morality. He further argues; it is directly contrary to the morality that is grounded within the constitution, which expressly recognises, protects and celebrates diversity. Stigmatising homosexuals on the basis of their sexual identity violates constitutional morality, which is the only kind of morality that is relevant for constitutional adjudication. Constitutional morality as derived from constitutional values, is distinct from public morality, which is based on shifting and subjective notions of right and wrong. 

In the current judgement Supriyo@Supriya Chakraborty versus Union of India & Ors, Supreme Court reiterated what was there in Naz Foundation, NALSA and Navtej Singh judgements but still held back on upholding the petition. 

Right to Marriage and Article 21

In this judgement, all five judges unanimously held that the right to marry is not a fundamental right under Article 21 – this is a sudden and different kind of yardstick used for applying Article 21 which has not been applied in the past. Positives were read in the past under Article 21 in the judgements like Shafin Jahan Vs Asokan K.M (popularly known as Hadiya Case). In the Hadiya case, the Supreme Court held that the right to choose religion and marry is an intrinsic part of meaningful existence. Neither the state nor the patriarchal supremacy can interfere in a person's decision. Similar precedence has been earlier taken in the Shakti Wahini judgment. But in the current judgement, the Supreme Court seems to be back peddling.

The earlier judgements, be it Hadiya or Shakti Wahini, both were of three judge bench judgements where it held that right to marriage was considered fundamental right under Article 21. But the current Supriya Chakraborty is a five judge bench judgement which held that the right to marriage is not a fundamental right, and the decision of a larger bench judgement always overrules its predecessor judgments. And if the right to marry is not a fundamental right any more than the state is free to enact any regressive law regarding marriage and people will be debarred from approaching the Supreme Court or High Court under Article 32 and Article 226 – which will be dangerous if both heterosexual as well as homosexual couples wanted to engage in a marital relationship.

Upcoming General Election and the Issue of Marriage Equality 

As the Lok Sabha election is scheduled next year, like all other issues, marriage equality is not going to be a concern for any political party. The intention of ruling BJP and its allies are very clear, inside the court, the language of Solicitor General and the supporting advocate was very clear too. The same goes outside the court as well. Some ministers were very vocal about opposing it. They consider heterosexual union as urbanised elite propaganda. The opposition, be it Congress or any other party, is not going to take this issue seriously because of the moral fabric of the society.

In the Indian social system, heteronormative concept of marriage is considered to be pragmatic and socially accepted, while same sex marriage is considered immoral, obscene and against religious tenets. So, any political party that goes on supporting marriage equality, might hamper its electoral gain directly or indirectly. That is why marriage equality will remain silent all through the election.

The only remedy that remains is to struggle, strike and pressurise the government through popular movement.