In the Indian context, marriage has special cultural and religious importance, and refusing it may exacerbate the stigma faced by same-sex couples. After hearing the matter for weeks, the judgment on same-sex marriages is to be pronounced soon.
In Kanpur, Uttar Pradesh, not so long ago, there was an outcast against transgender persons. Majority of the citizens living in the city used to treat transgender persons as third-class citizens, and called them 'untouchables'. But the Supreme Court's progressive judgments in this regard have changed the stereotypical perception surrounding transgender persons.
The Apex court stirred up the debate and led by example to give rights to LGBTQ+ people. The verdict in Navtej Singh Johar & Ors. v. Union of India (2018) not only established that the courts are progressive enough to guard a citizen’s sexual orientation, but it also showed that judges in the Apex Court understand that the sexual minorities need to be protected as they have faced atrocities for a very long time.
In its judgments on referring to discrimination against LGBTQ+ citizens, the top court stated institutional prejudices against LGBTQ+ citizens are a clear violation of Article 15 of the Constitution of India. More significantly the court also said when there is discrimination based on sexual orientation, it is a strike on the freedom of speech and bodily autonomy of any individual, thus it is a matter of grave concern. Owing to these explanations, the top court read down Section 377 of the Indian Penal Code which prohibited private, consensual adult same-sex activities.
Supriyo and Abhay, a same-sex couple who met in Hyderabad in December 2012, were the subject of one of the petitions here. After meeting their parents, the pair decided to hold a "wedding-cum-commitment ceremony" to honor their relationship with their loved ones. But, in the final analysis, the ceremony was just that. Their petition claims that, notwithstanding having developed a life together since then, they do not have the same rights as married couples, even though the Supreme Court has repeatedly stated that all adults have the right to marry the person of their choice.
The Supreme Court referred the petitions to legalize same-sex marriage to a Constitution Bench, citing the seminal importance of the issues. A three-judge bench led by the CJI stated in its reference decision that the arguments on the one hand include the interplay between constitutional rights and particular legislative enactments (including the Special Marriage Act), and on the other, the rights of transgender spouses.
Furthermore, only married couples now can adopt or have children through surrogacy or assisted reproductive technologies, as well as the automatic rights to inheritance, maintenance, and tax benefits. They are also entitled to benefits under a variety of laws. Furthermore, the state's protection of a spouse continues after death as a widow or widower, or their children can get a pension or humanitarian appointments, according to the petition. The petitions alleged that the 1954 Special Marriage Act was unconstitutional because it discriminated between same-sex and opposite-sex couples. It claimed that the Act denied same-sex couples both legal rights and the social respect and prestige that marriage conferred.
As of now, we stand at a juncture where the Supreme Court of India is hearing petitions to allow same-sex marriages in India. The top court formulated a constitution bench consisting of Chief Justice D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli, and Justice P.S. Narasimha on April 17, 2023. It started to hear these petitions for final arguments on April 18. The Central Government’s view on this matter has been very clear and evident via the affidavits filed in the court: it opposes same-sex marriages and is of the view that there can be no other marriages other than heterosexual marriages.
In its history, the Apex Court has often taken the high road of protecting the rights of every individual. In Shakti Vahini (2018), while hearing the matter of honor killings, the apex court stated that every adult has the basic right to marry the person they choose. The court concluded that an individual's choice is an essential component of dignity since choice erosion is incompatible with the concept of dignity. True, the same is constrained by the constitutional limitation principle, but in the absence of such a restriction, nobody, and we mean nobody, shall be allowed to interfere with the fulfillment of the said option. It would be incredibly challenging to imagine dignity in its hallowed wholeness if one's freedom to express one's preferences was restricted. When this observation of the Supreme Court is read with Navtej Singh Johar, it is very clear same-sex marriages can be legalized under the light of the Special Marriage Act, 1954.
Similarly in Shafin Johan (2018), Lata Singh (2006) and Laxmibai (2021), the top court has said that an adult person has a right to marry the person of their choice under the ambit of the Right to life (Article 21).
While deciding on privacy in Justice (Retd.) K.S. Puttaswamy, the apex court ruled that LGBTQ people's rights cannot be seen as "so-called" rights but rather as legitimate rights based on good constitutional philosophy. They have a natural right to life. They live in peace and respect. They are the foundation of liberty and freedom. Also, in Navtej Singh Johar, the court ruled that LGBTQ people have a full range of constitutional rights, including the liberties protected by the Constitution.
The state however has argued that legalising same-sex marriages will be against social stability and is also not violative of Article 14 of the Constitution of India as there is an intelligible difference. The state has taken a regressive approach to make a case against same-sex marriages. In its affidavit, the state mentioned that this is an issue of the legislature and to let the assembly handle this matter. The state's affidavit interpreted Navtej in a very peculiar way, claiming that LGBTQ+ people's privacy rights did not necessarily include the public right to marriage.
The Special Marriage Act governs secular marriages in India. Section 4 of the SMA, which governs the circumstances for the solemnization of exceptional marriages, uses gender-neutral terminologies such as a marriage between two persons and a spouse. In plain English, this means that the Special Marriage Act applies to both same-sex and opposite-sex marriages. The Special Marriage Act discriminates based on sexual orientation by preventing same-sex couples from marrying. Sexual orientation is both a protected ground under Article 15(1) of the Constitution (subsumed within sex discrimination) and ascriptive distinctive under Article 14 of the Constitution. In other words, the Court will be wary of, and more willing to interfere in, classifications that disfavor people based on their gender or sex.
The omission of same-sex couples from the social institution of marriage is the source of prejudice in this case. In our culture, the institution of marriage provides the functions outlined below. These are provided as examples to demonstrate that marriage is not only a luxury or advantage, but is profoundly ingrained in society, constituting the fundamental foundation of a couple's capacity to fully engage in it. It is a source of social and communal legitimacy for a partnership for individuals who desire any kind of marriage at all, expressed through formal acknowledgment by the State through its laws.
This demonstrates that marriage is not just a gift bestowed by the state, the terms of which it can thereby impose without constitutional evaluation. Marriage's basic, structural significance in our society implies that it is imbued with, and overlaps with, constitutional principles. The exclusion of one group of persons from entering the institution, as a result, necessitates a thorough judicial examination of the prohibition of discrimination concept. Because marriage is such an important social institution, the capacity to participate in it on equal terms is a matter of dignity. While the State prohibits a group of people from being part of a valuable social structure, it conveys to both the excluded and the rest of society that these individuals are less than complete moral members of society: it is thus a message of inferiority.
It is critical to raise this problem in petitions seeking marital equality in the context of same-sex marriages since the Special Marriage Act's public notice obligations and filing of complaints have been called into question in previous petitions. The notice and objection sections of the Special Marriage Act are commonly used by families and communities to ban inter-caste and inter-religious weddings, thus it is unavoidable that they will be employed by partners who want not to be in heterosexual relationships. The many High Court protection decrees acquired when harassing lesbian couples and couples with one transgender spouse support this claim.
Many nations have legalized same-sex marriages. This exclusion has been removed in jurisdictions that now legalize same-sex marriage, including Argentina, Australia, Austria, Brazil, Canada, Chile, Colombia, Costa Rica, France, Germany, Mexico, South Africa, Spain, Switzerland, Taiwan, the United Kingdom, and Uruguay. The United States of America on June 26, 2015, the United States Supreme Court, in a 5:4 decision in Obergefell v. Hodges, made marriage equality the law of the nation, granting same-sex couples in all 50 states the right to full, equal recognition under the law. The court reasoned that restricting marriage to heterosexual couples violates the 14th Amendment promise of equal legal protection. However, before the verdict, 32 states had already legalized homosexual marriage. Massachusetts became the first state in the United States to legalize same-sex marriage in 2003, after a decision by the state's Supreme Court in Goodridge v. Department of Public Health.
The Supreme Court of India focused on an all-encompassing notion of equality in all aspects of life, which is necessary for living in dignity and eliminating prejudice. With this strong equality-based rationale, which goes beyond basic privacy protection, the basis of equal treatment, rather than being left to the whims of lawmakers, could pave the way for marital equality in India. This is especially important in the Indian context, where marriage has special cultural and religious importance, and refusing it may exacerbate the stigma faced by same-sex couples. After hearing the matter for weeks, the judgment on same-sex marriages is to be pronounced soon. The court should lead society to legalize same-sex marriages and extend them all the rights in marriage as it is for heterosexual couples.
Kumar Kartikeya is a legal researcher based out of New Delhi.