Same-sex marriage: Petitioners and Central government have cited Navtej Singh Johar verdict; but who does it actually benefit?

In their opening submissions made in the same-sex marriage case before the Supreme Court on Monday, both the petitioners and the Central government relied on the landmark 2018 landmark judgment of the apex court in Navtej Singh Johar & Ors v. Union of India..In that case, a Constitution Bench unanimously read down Section 377 of the Indian Penal Code to the extent that it criminalised consensual sexual relations between adults, whether of the same sex or otherwise..More than four years later, this judgment serves the basis on which the petitioners have approached the top court seeking recognition of same-sex marriage.So what exactly does the judgment say on the aspect of same-sex unions? And how are the parties citing it to strengthen their respective cases?.The Central government, as we know, is opposed to giving legal recognition to same-sex marriage. It has stated in an affidavit before the apex court that same-sex marriage is not in tune with the Indian family unit concept, which involves a biological man and a biological woman with children born out of such wedlock..Appearing for the Centre on Monday, Solicitor General (SG) Tushar Mehta argued that the Supreme Court ought to be "careful" to not extend the benefit of Navtej Johar for the purpose of recognizing same-sex marriages.He added that though same-sex relations were no longer unlawful, giving legal recognition to such unions was something which even the Navtej Singh Johar judgment did not do..The para from the judgment which forms the basis of SG Mehta's submission reads,"The above authorities capture the essence of the right to privacy. There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.".The SG went on to argue, "Right to love, right to express is already upheld and no one is interfering with that right...but Court said that it should not be meant to mean that it includes right to marry and the court was careful in doing so.".On the contrary, Senior Advocate Neeraj Kishan Kaul, appearing for one of the petitioners, made it clear that the judgment held that "right to life includes right to marriage, procreation and even sexual orientation," and that it was the "first proposition" the petitioners were relying on."After Navtej Johar judgment, issues have narrowed down. Today just to say it is part of cultural ethos etc is not correct. Statutes can be harmoniously construed. Now privacy has been upheld," said Kaul. .Some of the portions of the judgment which the petitioners read in their favour are as follows..Justice DY Chandrachud (as he then was) said in his opinion,"With the passage of time and evolution of the society, procreation is not the only reason for which people choose to come together, have live-in relationships, perform coitus or even marry. They do so for a whole lot of reasons including emotional companionship.".Further, the petitioners have relied on a paragraph from the Navtej Johar judgment to substantiate how "social institutions" can be arranged in a manner which can accommodate such same-sex unions."This “institutionalized expression to love” must be considered an important element in the full actualisation of the ideal of self-respect. Social institutions must be arranged in such a manner that individuals have the freedom to enter into relationships untrammelled by binary of sex and gender and receive the requisite institutional recognition to perfect their relationships. The law provides the legitimacy for social institutions. In a democratic framework governed by the rule of law, the law must be consistent with the constitutional values of liberty, dignity and autonomy. It cannot be allowed to become a yoke on the full expression of the human personality.".The Court also went on to cite many of its earlier judgments on the right to marry of choose a life partner as being a facet of the right to privacy and the right to life and personal liberty under Article 21 of the Constitution. Some of the references to these judgments include:1. "In R Rajagopal v. State of Tamil Nadu and others, while discussing the concept of right to privacy, it has been observed that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21 and it is a "right to be let alone", for a citizen has a right to safeguard the privacy of his/her own, his/her family, marriage, procreation, motherhood, child-bearing and education, among other matters."2. "In Shakti Vahini v. Union of India, a three judge Bench of this Court...recognised the right to choose a life partner as a fundamental right under Articles 19 and 21 of the Constitution."3. The Court cited its finding in Shafin Jahan v. Asokan KM, wherein it held,"The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith...Social approval for intimate personal decisions is not the basis for recognising them."4. The Court also referred to its landmark decision in National Legal Services Authority v. Union of India and others, in which the rights of transgenders were recognized."Sikri, J., in his concurring opinion, dwelling upon the rights of transgenders, laid down that gender identification is an essential component which is required for enjoying civil rights by the community. It is only with this recognition that many rights attached to the sexual recognition as ―third gender would be available to the said community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport...".In her concurring judgment, Justice Indu Malhotra had noted that several countries have enacted enabling legislation which protect LGBT persons from discrimination, and allow them to adopt children..It is likely that the judgment will feature prominently in the arguments made by both sides before a Constitution Bench set up to decide the issue of whether same-sex couples should be conferred the right to marry..While both Central Government and the petitioners have heavily relied on the Navtej Johar judgment, at no point did the five-judge Constitution bench lay down or form any view on whether or not same sex marriage should be legalised.The judgment, however, expanded the scope of individual rights including of gender identity and sexual orientation. Whether the top court will consider that as a ground to give expansive reading of laws like Special Marriage Act could very well determine the outcome of the same-sex marriage case.