‘Jab miyan biwi razi, toh kya karega qazi’ (when a man and woman want to marry, how can the priest prevent them), goes an adage. The problem arises when people can’t figure out easily who is miyan and who is biwi. One can understand the problem of courts dealing with such cases.
The Supreme Court, hearing a complicated case impinging on recognising marriage as an institution that goes beyond gender and the related rights of parties in the case of same-sex couples, has agreed to the Union government’s proposal to form a committee headed by the Cabinet Secretary to address “human concerns” of same-sex couples without legally recognising their relationship as a marriage.
Calling it a “very fair suggestion”, a five-judge Constitution Bench, headed by Chief Justice of India D Y Chandrachud, said if what the government says goes through, it “will be a substantial advancement over what we have today” and a “building block for the future” of the movement for gay rights. The apex court, which had previously said it would look at whether the Special Marriage Act of 1954 (which allows marriages between people of different castes and religions and weddings held abroad) could be tweaked to include LGBTQ+ people, asked the petitioners if, at this stage, they would still like to stick to their demand for a declaration that they have the right to marry under SMA.
In this context, The Pioneer’s Amartya Smaran looks at informed legal opinions, perceived rights of LGBTQ+ community members, and the overwhelming concerns of most people who continue to believe that marriage is an institution that involves only union of a man and a woman and that any attempt to change the status quo would have disastrous consequences for society.
India has come a long way since the Supreme Court annulled Section 377 of the Indian Penal Code. In its landmark judgment in Navtej Singh Johar V. Union of India (2018), the top court decriminalized homosexuality and ruled the section unconstitutional.
The ruling enabled members of the LGBTQIA+ (Lesbian, gay, bisexual, trans, queer, intersex, and asexual) to go about their lives with ease. Same-sex couples no longer have to worry about being labeled criminals. The slogan – ‘Love is love’ – took a new form in the context of relationships in India too. Gradually acceptance rates grew among citizens and the community began voicing its opinions with increasing levels of confidence.
However, mockery and snide remarks against members of the community continued. Certain sections never really bought the idea of decriminalizing homosexuality. They cited religious doctrines, arguing that Indian culture was being corrupted, and age-old traditions were going for a toss. While the change in law liberated the parties concerned, it also enraged other stakeholders.
The judgment never implied or confirmed or recognised same-sex marriage. This meant only same-sex relationships were recognised under law. As a result, same-sex couples lacked matrimonial benefits-surrogacy, adoption, retirement benefits, and employment – that heterosexual couples enjoy in the country.
It was on November 14, 2022, that two same-sex couples, Supriyo Chakraborty and Abhay Dang as well as Parth Phiroze Merhotra and Uday Raj Anand, filed writ petitions in the apex court seeking legal recognition of same-sex marriages.
The writ filed by Supriyo Chakraborty and Abhay Dang says that non-recognition of same-sex marriages violates their rights under Articles 14,15,19, and 21 of the Constitution, and therefore, warrants the interference of the Supreme Court. They’ve presented their point that reading the Special Marriage Act in a gender-neutral manner to include same-sex couples and transgender persons presents no problems to the working of the statute and upholds the constitutionality of the statute.
A five-judge Supreme Court bench led by Chief Justice of India D.Y. Chandrachud began hearing a series of petitions on April 18. The final judgment on the plea for marriage equality is still pending.
Nikunj Dugar, advocate and founder of Pivot Legal spoke to The Pioneer in his personal capacity. He said: “The Special Marriage Act of 1954 is an Indian law that provides for civil marriage registration and solemnisation of marriages for all Indian citizens, irrespective of their religion or faith.”
“The Act was passed by Parliament with the objective of providing a special form of marriage for those who do not wish to marry according to the traditional customs and rituals of their respective religions.” The advocate further explains: “Under the Act, any two individuals who are eligible to marry can register their marriage before a Marriage Officer, who is appointed by the state government.
The Act provides for a notice period of 30 days before the marriage can be solemnised, during which objections to the marriage can be raised. The Act also allows inter-caste and inter-religious marriages and provides for the appointment of Marriage Officers from different religions and communities…
The Special Marriage Act of 1954 is often seen as a progressive law, as it promotes individual choice and freedom in marriage, and ensures equal treatment of all citizens, irrespective of their religion or caste. However, the Act has also been criticised for being too bureaucratic and for imposing restrictions on individual choice in terms of the notice period and the requirement for a Marriage Officer to solemnise the marriage.”
What is the Union government’s stand on this? The central government told the Supreme Court on April 17 that the petition to seek recognition of same-sex marriages is nothing more than a projection of ‘urban elitist views’ for the sake of social acceptance. The Centre also argues that same-sex marriages may not find acceptance by society like in the case of heterosexual marriages. And it doesn’t find recognition within the Indian traditions, ethos, and culture. The Union government took its stand on the matter and said the decision came under the purview of Parliament and not the judiciary.
On this, Nikunj Dugar says while it is true that the decision to legalize same-sex marriage ultimately rests with Parliament, it is also important to note that the judiciary has a crucial role to play in interpreting the Constitution and ensuring that the fundamental rights of all citizens are protected.
The issue of same-sex marriage involves questions of equality, non-discrimination, and the right to privacy, all of which are guaranteed under the Constitution. It is the duty of the judiciary to ensure that these rights are upheld, and if there are any laws or practices that violate these rights, the judiciary has the power to strike them down. Ultimately, it is up to Parliament to enact laws that reflect the will of the people, but until then, it is important for the judiciary to continue to hear and consider cases related to same-sex marriage in order to ensure that the fundamental rights of all citizens are protected, according to the advocate.
Solicitor-General(SG) Tushar Mehta said the right to marriage was not a fundamental right. However, according to Nikunj, the argument is based on the interpretation of Article 21 of the Constitution, which guarantees the right to life and personal liberty to all persons.
“The Solicitor General may argue that the recognition of same-sex marriages is not an inherent part of this fundamental right and that it is not expressly stated in the Constitution. However, it is important to note that the right to marriage is a fundamental right recognised by various international human rights instruments, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the European Convention on Human Rights.
Moreover, the Supreme Court of India has recognised the right to marry as a part of the right to life and personal liberty under Article 21 in several cases. Therefore, the argument that recognition of same-sex marriages is not a fundamental right may not hold up against the international human rights standards and the previous judicial precedents in India,” observes Nikunj Dugar.
According to Nikunj Dugar, if same-sex marriages were to be recognised in India, it would have several repercussions, both positive and negative. Positively, it would grant equal rights and recognition to individuals, regardless of their sexual orientation, which is a fundamental right enshrined in the Indian Constitution. It would also provide legal protection to same-sex couples, including inheritance rights, hospital visitation rights, and the right to make medical decisions for their partner.
On the negative side, the recognition of same-sex marriages could face resistance from religious groups and conservative sections of society. It may also take some time for society as a whole to accept this change, and it may lead to social tensions and conflicts. Additionally, legal and administrative changes may have to be made to various laws and regulations, including family law, inheritance law, and property rights. Overall, the recognition of same-sex marriages in India would be a significant step towards inclusivity and equality, but it may also face challenges and resistance in implementation. It is difficult to predict whether it would disrupt the traditional system, as societal norms and values are constantly evolving, and changes may occur gradually over time.
Nikunj strongly believes that it is high time same-sex marriages were recognised and legalised in India. Denying individuals the right to marry based on their sexual orientation is a violation of their fundamental rights and goes against the principles of equality and non-discrimination.
Richa Joshua, an advocate who has been practicing before Trial Courts for the State of Telangana since 2017, addresses various difficulties in enacting same-sex marriages if they were to be recognised in India:
Marital disputes: Which party is protected and how can they be protected equally without bias.
Parental issues: Adoptions, child’s welfare in this different set-up; social acceptance of the child.
Claims: Property issues, custodial issues, alimony.
Divorce laws: Assessing ‘which responsibility to be assigned to which party’ would be difficult, given that existing roles and responsibilities are generally gender-based.
“In this context, the Supreme Court and the Legislature would have to carefully take all such factors into account before changing the existing system before legalising/not recognising same-sex marriages. Furthermore, the social impact of such a change has to be necessarily taken into account,” reiterates Richa Joshua.
The advocate further says: “The issue of same-sex marriages has been in discussion for ages and can even be observed in historical texts. This is a highly emotional subject and should be treated accordingly. With the ever-changing social structure and influence of international culture; whereas the Indian social set-up historically has not supported same-sex marriage due to certain belief systems, and marriage is seen to be an institution only between a man and a woman, laws have been enacted keeping such marriages alone in mind. As such, legalising same-sex marriage would require keeping in mind the effect it would have on the enforcement of the existing laws concerning marriage. For instance, laws concerning adoption, succession, guardianship, divorce, maintenance, domestic violence, etc., are all centered on the existing notion of heterosexual marriage. Any change in one branch of law would have a cascading effect on the others.”
In 2019, CSDS-Lokniti and Azim Premji University conducted a survey in which it was found that 55% were not in favour of same-sex marriages. Only 19% agreed that same-sex marriages should be accepted. The rest did not express their opinion on the topic. The survey yielded a negative response from religious groups. At around 22%, the acceptance rate of same-sex relationships was the highest among Hindus; while 50% of Muslim, 70% of Christian, and 40% of Hindu and Sikh respondents rejected same-sex relationships.
On the chances of same-sex marriages being recognised, Vaibhav Kumar Modi, Kathak artiste, LGBTQIA+ activist and curator says: “I have faith in the democracy called India and the honorable Supreme Court of India, which is handling this case with the much-deserved sensitivity and dignity that it deserves. It is overwhelming to see the lawyers and allies fighting tooth and nail for equal rights, and I believe the time has come where Bharat becomes a Vishwsguru and teaches the world about inclusion by accepting this.”
The Supreme Court said gender is far more complicated than one’s genitals. “There is no absolute concept of a man or an absolute concept of a woman.”
Responding to the belief that only two genders exist, Vaibhav opines, “‘Two genders?’ Really? I think by that statement itself we have negated the existence of the already legally recognised third gender in India. Yes, the world has now moved forward in terms of understanding of gender expression, and India must keep up. However, in my understanding, we have systematically chosen to ignore these concepts. Our mythology and history are interspersed with the mentions of varying gender expressions, for instance, Shikhandi, and Birhannala from Mahabharata. So,in my opinion, this is nothing new to Indian society; it was only forgotten or systematically erased and needs to be reinstated with dignity.”
“I have followed the hearing very keenly and only have words of appreciation for the way that the Chief Justice and the Constitution bench have handled this case,” enthuses Vaibhav. “However, it is equally appalling to see the statements of the Solicitor General of India. It rather goes on indicating that this is not being taken seriously.”
Shayne Reynolds, a media professor from the city, is of the opinion that issues related to sex and gender are not usually discussed in the open. He says this very reason made it even harder to discuss LGBT issues all these years. The professor feels the Solicitor General is being sensitive towards the topic. “He is looking at it from the perspective of human rights, democracy, freedom of choice, and the Constitution.”
He further continues: “Homosexuality exists in most species of living creatures. Though it’s less common, it exists in nature, so it’s natural. However, India used to be a free and open society and homosexuality has been prevalent in Indian society since time immemorial. It has also been widely depicted in ancient Indian art. It was the British that came out with laws that made homosexuality a crime.”
Ronan Mili, a make-up artiste from the city, shared with us that over the years, he’s been called out for his make-up, gender expression, and lifestyle. He moved to the city at the tender age of 19. Ronan hails from a small town in Guwahati. He says the city welcomed him with open arms and gave impetus to his career growth and expression.
“Religions have been shaped through culture over the centuries. Hindu and Muslim cultures had been quite open and accepting until the concept of shame was brought as an unwanted import by the British people as a part of their culture. Present-day religions carry the same shame and use it as a unifying factor to make public calls take away the rights of LGBTQ community. While there are some supporting voices in organised religions here and there, they remain an exception,” shares Ronan Mili.
As per a survey conducted by the Pew Research Center in 2020, in 2013, only 15% of people accepted homosexuality in India. The number gradually inched toward 37% in 2019. The survey also concluded that people who see religion as less important in their lives are more accepting of homosexuality. Women, the report says, in some countries are more accepting than men. For example, in South Korea, 51% of women say homosexuality should be accepted by society as opposed to 37% of men. That’s a divide of 14%.
The survey was conducted across 34 countries from May 13 to Oct. 2, 2019, totaling 38,426 respondents. The report points out that since 2014, India witnessed a 22 points increase in acceptance levels of homosexuality. As of today, 34 countries have legalised marriages between homosexual couples.
Patruni Chidananda Sastry is a drag artist from the city. Chidananda Sastry is a bisexual non-binary person married to a heterosexual woman. He says: “I guess the loophole is within the institution of marriage,” avers Sastry.
“I think people don’t want to understand and learn about the history of marriage and how diverse it is within the Indian context. Especially for queer weddings, which happened many years before as per mythology. However, people still think it is a Western concept as they haven’t been seeing it from the Indian lens. Like Krishna married Aravan, not to procreate but to be a widow, people believe in superstitions of marrying a tree/goat for mangaliks, but why can’t they understand that two consenting adults can marry too without labels? The loophole is with the government saying the same thing again and again but not knowing or having a best reason to deny.”
During the hearing on May 3, significant improvements took place in the case. Solicitor General Tushar Mehta, appearing for the government, said he had spoken to a number of Union Ministers and suggested they form a committee. The committee would therefore look into the administrative changes, thereby addressing the concerns of the LGBTQIA+ community. The suggestion was welcomed by the petitioners, but senior advocate Singhvi underscored that these administrative changes don’t cover the length and breadth of what the petitioners originally set out to seek from the apex court. This proposition looks at granting social benefits to the LGBTQIA+ community without necessarily attaching the tag of “marriage”.
Vaibhav Kumar Modi, an LGBTQIA+ activist who’s been closely following the case, says, “I don’t think this is just about marriage for the LGBTQIA+ community of India. It’s about standing equal and shoulder-to-shoulder with our cis-het society peers. We pay equal taxes, we cast the same votes, and yet we don’t get to decide if we can marry someone, adopt a child, nominate a person to pass on our inheritance. The committee is a welcome move. However, that is not a fix for the difference in equality, and no grounds for saying that LGBTQIA+ people can’t marry. In my understanding, it should have been done the day section 377 was read down.”
Attorney General R. Venkataramani cautioned the bench against altering the Special Marriage Act. The attorney general argued that SMA couldn’t be called under-inclusive. He says the SMA was put in place when only heterosexual marriages were practiced.
The five-judge bench is yet to pass a judgment on whether persons belonging to the LGBTQIA+ community have a right to marry under the Special Marriage Act. The Supreme Court will resume hearing on May 9.
In all probability, the apex court will deliver a verdict that will be in keeping with the changing times. For, laws cannot wish away social changes that dislodge traditions and mores.
