On September 6, 2018, a five-judge Constitution Bench of the Supreme Court of India in a landmark decision in Navtej Singh Johar v. Union of India unanimously struck down Section 377 of the Indian Penal Code (IPC), thereby decriminalising sexual relations between consenting adults of the same sex.
However, four years since the verdict, other ancillary rights that were not dealt with by that Bench, are yet to be realized by the State.
On the occasion of the fourth anniversary of Navtej, it is necessary to look at what present personal laws offer heterosexual couples, but deny same-sex couples.
The right against discrimination is a basic human right. The present legal void in same-sex marriage disrobes choice based only on societal standardization. There is a constant need to transform constitutional idealism into reality by fostering respect for human rights and promoting inclusion of pluralism.
Dignity, identity and transformative constitutionalism
Identity with dignity and privacy are seminal facets of Article 21 of the Constitution of India, which is an ‘organic and breathing document’ capable of adapting to the growing needs of society without losing its identity vis-à-vis enabling every individual to grow and realize his/her potential.
The Constitution is intended to adapt and transform our society into a progressive one, and courts must commit to end discrimination which may otherwise continue indefinitely, and to act as the sentinel on the qui vive for the realization of fundamental rights of all individuals. The courts must interpret constitutional principles ‘broadly, liberally and progressively’ to promote social integration and stay true to the ideals set out in the Preamble.
In the case of the National Legal Services Authority v. Union of India (2014), the Supreme Court had judicially recognized gender identity as an "inalienable, absolutely essential & most fundamental" aspect of life for enjoying civil rights.
Dignity, being a sacrosanct human right, is harmed when individuals and groups are marginalized and ignored, and is enhanced when laws recognize the full place of all individuals and groups. As observed in Common Cause (A Regd. Society) v. Union of India (2018), the right to dignity shall include the right to carry such functions and activities as would constitute the meaningful expression of the human self.
Homosexuality is a natural phenomenon like other natural biological phenomena and people experience no sense of choice about their sexual orientation. Constitutional morality must prevail over social morality and social values and morals cannot override constitutionally guaranteed freedoms. When individuals attain a certain age and capability to think on their own, they have a right to choose their life partner protected under Article 21 of the Indian Constitution. The process of transformative constitutionalism is intended to include a sphere of equal opportunity in addition to equality and individual dignity.
How present legislation narrows the freedom of choice
The right to privacy and the protection of sexual orientation lies at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution. The choice of an individual is an ‘inextensible’ part of dignity in both a constitutional and a human rights sense.
As observed by Justice Rohinton Nariman in Navtej, same-sex sexuality is a normal variant of human sexuality, much like heterosexuality and bisexuality, and persons of the same-sex who cohabit with each other are entitled to equal treatment. Excluding same-sex union limits their right to marriage.
The present provisions of the Hindu Marriage Act, 1955 appears to be based on a heteronormative notion and provides that the bridegroom must have completed the age of 21 years and the bride, the age of 18 at the time of the marriage as one of the conditions under Section 5. This denies an individual belonging to the LGBT community the choice of partner.
Section 4 of the Special Marriage Act, 1954 begins with non-obstante clause adopting an identity-neutral approach, providing that "…a marriage between any two persons may be solemnized under this Act." However, it later provides for a condition that ‘the male has completed the age of twenty-one years and the female the age of eighteen years’ and subjects the LGBT minority to discrimination and places their rights as less sacred than those conferred on other citizens.
Likewise, the present provisions (Sections 7, 8, 14 and 21) of the Hindu Adoptions and Maintenance Act, 1956 prejudices same sex couples from adoption. The Surrogacy (Regulation) Act, 2021 provides a restrictive definition of “couple” as a "legally married Indian man and woman above the age of 21 years and 18 years respectively."
These laws suffer from incurable fixations of stereotypes, morality and conception of sexual roles, which are unjustified in principle and disproportionate, thereby violating Article 15 and 16 on the ground of gender identity.
The right to sexual orientation has been recognized as an intrinsic part of the right to privacy. Privacy is an essential facet of the dignity of the human and public interest lies in respecting individual privacy. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. Equal protection demands protection of the identity of every individual without discrimination.
It is the absolute right of an individual to choose a life partner irrespective of matters of faith and social approval.
Why do same-sex couples want to marry?
Marriage is the State's recognition and approval of a couple’s choice to live with each other, to remain committed to one another and to join in an economic partnership and support one another and any dependents. Same-sex couples wish to marry for many of the same reasons that opposite-sex couples marry.
However, present laws in India indicate that same-sex relationships are not to be respected and are of no value. Far from enabling them to regularize their union, the laws shut them out, unfairly and unconstitutionally.
While denying same-sex couples the right to marry, it is typically asserted that the purpose of marriage is procreation and that such a union could not meet this purpose. Procreation is not a characteristic that defines conjugal relationships, because affirming the contrary would be demeaning for couples – whether married or not – who, for whatever reason, are unable or unwilling to procreate.
Non-recognition and discrimination
Justice DY Chandrachud endorsed following view in Navtej:
“Discrimination is a distinction which, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, has an effect which imposes disadvantages not imposed upon others or which withholds or limits access to advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.”
The philosophy that homosexuals should practice the virtue of patience and wait for societal acceptance fails to take into consideration that the legal void in which same-sex couples are compelled to live is real, intense and extensive. To appreciate this, it is necessary to look what the law offers to heterosexual couples, and conversely, at what it denies same-sex couples.
The present system unjustifiably excludes homosexual couples who are similarly-situated to heterosexual couples from accessing the institution of marriage. This distinction is discriminatory because sexual orientation is not a relevant factor for making the distinction, considering the overall constitutional objectives. Since the purpose of marriage is not procreation, there is no justification for considering that the matrimonial union should be heterosexual, or that it be said to be “just between a man and a woman.”
It represents a harsh statement by the law that same-sex couples are outsiders, and that their need for affirmation and protection of their intimate relations as human beings is somehow less than that of heterosexual couples.
It reinforces the wounding notion that they are to be treated as biological oddities, as failed or lapsed human beings who do not fit into normal society, and as such, do not qualify for the full moral concern and respect that our Constitution seeks to secure for everyone. It signifies that their capacity for love, commitment and accepting responsibility is by definition less worthy than that of heterosexual couples.
In Navtej, the Supreme Court had observed that since sexual orientation was an essential component of identity, equal protection demands equal protection of the identity of every individual without discrimination. Indeed, it is a fundamental right to be acknowledged as equals and to be embraced with dignity by the law.
A law that creates institutions that enable heterosexual couples to declare their public commitment to each other and achieve the status, entitlements and responsibilities that flow from marriage, but does not provide any mechanism for same-sex couples to achieve the same, discriminates unfairly against same-sex couples.
An international perspective on same-sex relationships
The Yogyakarta Principles stipulate that “[n]o status, such as marriage or parenthood, may be invoked as such to prevent the legal recognition of a person’s gender identity…States shall...ensure that all persons are accorded legal capacity in civil matters…”
The United Nations Human Rights Committee has urged States to “ensure that [their] legislation is not discriminatory of non-traditional forms of partnership” & ‘sex is to be taken as including sexual orientation”.
The Inter-American Court of Human Rights had directed that “[S]tates must ensure full access to all the mechanisms that exist in their domestic laws, including the right to marriage, to ensure the protection of the rights of families formed by same-sex couples, without discrimination....”
Prohibition against discrimination is also contained in the Article 26 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees equality before the law.
The Committee on Economic, Social and Cultural Rights has stated that other status in Article 2(2) includes sexual orientation, and reaffirmed that gender identity is recognized as among the prohibited grounds of discrimination.
Position in the United States
In the landmark case of Lawrence v. Texas (2003), federal estate tax exemption was provided for surviving spouses, but the petitioner was barred from doing so by Section 3 of the Federal Defense of Marriage Act (DOMA) which defined “marriage” and “spouse” but excluded same-sex partners. The US Supreme Court noted
“…. [w]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”
It thus held that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the US Constitution.
In the ground breaking decision of Hively v. Ivy Tech Community College of Indiana (2017), while applying the ‘associational theory’ of discrimination, the United States Court of Appeals for the Seventh Circuit answered in the affirmative the question whether Title VII's sex discrimination proscription encompasses sexual-orientation discrimination as “a person who is discriminated against because of the protected characteristic of one with whom she associates is actually being disadvantaged because of her own traits” and discrimination because of one’s partner’s sex, amounts discrimination on the basis of “sex”.
Rulings of the Constitutional Court of South Africa
In South Africa, in Satchwell v. President of Republic of South Africa and Another (2002), the non-inclusion of same-sex partners in a statute providing pension rights to the surviving spouses of judges was held to be discriminatory. Madala J. pointed out that:
“…[m]arriage was a matter of profound importance to the parties, and indeed to their families, and was of great social value and significance. Historically, however, our law had only recognised marriages between heterosexual spouses, and this narrowness of focus had excluded many relationships which created similar obligations and had a similar social value...
…provisions in question afforded benefits to spouses but not to same-sex partners who had established a permanent life relationship similar in other respects to marriage, including accepting the duty to support one another, such provisions, constitute unfair discrimination.”
In Suzanne Du Toit and Another v. Minister of Welfare and Population Development and Others (2002), the Court had struck down a provision in child care legislation which confined the right to adopt children jointly to married heterosexual couples and held as:
“…the exclusion of same-sex life partners conflicted both with the best interests of the child and the right to dignity of same-sex couples, and family life as contemplated by the Constitution could be provided in different ways, and that legal conceptions of the family and what constituted family life should change asocial practices and traditions changed.”
Indian scenario: The roadmap ahead
There would be no sense in creating an institution that produces the same effects and gives rise to the same rights as marriage, but that is not called marriage. Such an endeavour would draw attention to same-sex couples by the use of a label that indicates a stigmatizing difference or that belittles them.
"The presence of queer individuals in public spaces must be the norm rather than the exception. The accomplishment of this simple yet crucial task would breathe life into the decision in Navtej," he said.
The judge also underlined the importance of ensuring that "atypical or unconventional families" are able to enjoy all the legal and societal benefits that their more traditional counterparts do, including marriage.
"When I say unconventional families, I do not mean to refer only to queer couples but also to others who choose to live their lives in a manner that deviates from the accepted norm. Our very understanding of the family unit must change to include the myriad ways in which individuals forge familial bonds," he said.
A Constitution that protects sexual orientation must outlaw any law that enables the State to obstruct the fulfilment of equality regardless of sexual identity. These rights go beyond the mere freedom to engage in consensual sexual activity in private, and include the right to full citizenship, the right to form unions and the right to family life.
The Supreme Court in Navtej Singh Johar case held and declared as:
(a) Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution;
(b) The choice of whom to partner, the ability to find fulfillment in sexual intimacies and the right not to be subjected to discriminatory behavior are intrinsic to the constitutional protection of sexual orientation;
(c) Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law;
It is right time to recognize that “no provision, decision or practice of domestic law, by either the state authorities or private individuals, may diminish or restrict the rights of a person based on his or her sexual orientation. Everyone has the right to recognition everywhere as a person before the law.”
Sexual orientation is an integral and innate facet of every individual’s identity. Legal recognition of the inalienable right to gender identity is an essential component to enjoy ‘civil liberty’. The State cannot disrobe choice based only on societal standardization. It must take measures for progressive realization of constitutional rights.
The recognition of same-sex marriage shall bring true fulfilment to the Supreme Court's verdict, which laid great emphasis on dignity, identity and autonomy. There must come a time when the constitutional guarantees of equality and inclusion will end the decades of discrimination practiced, based on a majoritarian impulse of ascribed gender roles. That time is now.
The Supreme Court, as the final arbiter of the Constitution, must not remain a mute spectator for the realization and attainment of rights of citizens who face humiliation, discrimination and violence from the State and the society.
Puneet Deshwal is a 2022 law graduate from Faculty of Law, University of Lucknow. Anadi Tewari is a 5th year law student from Faculty of Law, University of Lucknow. He also works for Bar & Bench. Views are personal.