More than 18 petitioners from across the LGBTQI spectrum in India have argued that the country’s current marriage laws are unconstitutional. They claim the laws are unconstitutional because they deny LGBTQI people both the institutions and benefits of marriage. A three-judge bench of the Supreme Court, presided over by Chief Justice Chandrachud, observed that the case was of substantial importance and referred it to a five-judge constitution bench. The petition will be heard on April 18.
Among the petitioners are several young LGBTQI professionals who are bravely demanding the right to same-sex marriage. Petitions by gay couples Supriyo Chakraborty and Abhay Dange, Utkarsh Saxena and Ananya Kotia, as well as lesbian couples Kavita Arora and Ankita Khanna and Aditi Anand and Susan Dias, show that for them the right to marry is the right to express their love. Among the petitioners are well-known transgender activists Akkai Padmashali, Zainab Patel, Uma Umesh and Vyjayanti Vasanta Mogli, gay activists Nithin Karani and Harish Iyer, queer and lesbian activists Rituparna Borah, Chayanika Shah, Maya Sharma and Minakshi Sanyal. Among the petitioners is intersex activist Gopi Shankar M.
The petitions represent the diversity of India as the petitioners come from all corners of the nation and represent all aspects of the LGBTQI community. The petitioners challenge numerous rules that prevent them from enjoying the benefits of marriage. The Special Marriage Act is challenged by eleven petitioners, the Hindu Marriage Act two, the Foreign Marriage Act three, all the Marriage Acts one, and one challenging the Union of India’s interpretation of the Citizenship Act, which prohibits same-sex couples from qualification for OCI status.
At the heart of all petitions is a reference to the principle of equality. The petitioners argue that there is no legitimate constitutional justification for denying LGBTQI persons the benefits of marriage. The petitioners cite a number of privileges they are denied access to because of their sexual orientation or gender identity, such as the ability to open joint bank accounts, file joint tax returns, name a spouse as an insurance beneficiary, and make medical decisions for someone they care about. They argue that if LGBTQI people are denied the rights granted by law to heterosexual married couples, then equality under the law is unattainable.
In addition, the applicants argue that the right to marry is related to the right to self-expression. In the moving words of Judge Leela Seth, “what makes life meaningful is love,” and marriage is one way society recognizes the right to love. The applicants argue that preventing them from participating in one of the most significant life-changing decisions a person can make denigrates their humanity.
The petitioners also claim that this ban on marriage is a constitutionally protected value of dignity. Marriage gives social recognition to the relationship and counters the denigration of LGBTQI relationships as less valuable than heterosexual marriage.
The arguments of the applicants are supported by the newly developed jurisprudence of the Supreme Court. In Puttaswamy v. Union of India, the court concluded that “the sanctity of marriage, the freedom to procreate, the choice of family life and the dignity of the being” are matters about which “every individual” should be concerned. The pursuit of pleasure is based on individuality and respect for others. Both are key components of privacy, which does not distinguish between people’s birthmarks.
In Navtej Johar v. Union of India, Justice Chandrachud stated that “the constitutional principles that led to decriminalization must be continuously incorporated into the rights discourse to ensure that same-sex partnerships achieve full fulfillment in every aspect of life. Same-sex couples cannot be discriminated against by law. In order to achieve fair protection, proactive measures must also be taken.
The Court held that Article 14 does not limit the term “person” and its application to men or women only in the case of NALSA v. Union of India. Hijras/transgender people who do not identify as either male or female fall under the definition of “person”, making them eligible for legal protection under the law in all areas of state activity, including employment, health care and education, as well as civil and state rights like any other citizen of this country.
The promise of the Constitution begins to be realized as the values of the Constitution are applied to the lives and loves of LGBTQI people. However, it is disturbing to see how the Union of India has responded to these significant emancipatory changes which have their roots both in the text of the Constitution and in the interpretation of it by the Court. According to the Union of India, it is a legislative body that “reflects the collective wisdom of the nation” and that “regulates, permits or prohibits human relations” based on cultural ethos, social standards and other elements that define proper human behavior.
This idea that the government should defend “cultural ethos” and “social standards” is completely wrong. It is the job of the legislature to root its actions in the basic morality of the Constitution, not to defend the changing concepts of “social standards” and “cultural ethos”, which in the past have been used to defend caste discrimination and customs like sati.
The Government, which has sworn to ‘bear true faith and allegiance to the Constitution of India’, should be aware that it is bound to give meaning to the promise of the Constitution and not deny constitutional rights based on vague and arbitrary notions of ‘cultural ethos’ or ‘social standards’. Constitutional morality, as Babasaheb Ambedkar stated in the Constituent Assembly, “is not a natural emotion” and “must be nurtured”. For Ambedkar, democracy in India was “implemented” on “essentially undemocratic Indian soil”.
Babasaheb Ambedkar’s argument is that Indian society should be democratized. The rights of Dalits, women and LGBTQI people are limited by the caste and patriarchal social structure. The Union of India has not recognized this aspect of its constitutional responsibility. The Union has decided to ignore the reality that fellow citizens strive to achieve their basic rights, but also the desire to transform the patriarchal society. Only in the transformation of ‘social standards’ and ‘cultural ethos’ does the Constitution become important for all its citizens.
(The author is a lawyer and writer based in Bengaluru. He is co-editor of Law as Love: Queer Perspectives on Law.)
