The media is abuzz with chatter about the hearings for the legal recognition of marriage equality in India. In 2018, the Supreme Court of India, in its landmark judgement Navtej Singh Johar & Others Vs. Union of India Ministry of Law and Justice (henceforth Johar), declared Section 377 unconstitutional to the extent that it criminalized consensual sexual relations between adults of the same sex / same gender. This decision was celebrated as a win for what many posit as the ‘right to love’. In fact, a careful reading of the judgement reveals a recognition of what Justice D. Y. Chandrachud frames as “the right to intimacy” for the first time in judicial discourse.
In 2022, a petition was filed in the Delhi High Court for the legal recognition of same sex marriages under Indian law. The denial of the right to marry, the petition argued, violated the fundamental rights to equality, liberty, and dignity. In January 2023, the Supreme Court transferred the various petitions relating to marriage equality filed in different High Courts to itself. Subsequently, a Constitution Bench was set up to hear this matter. Such a bench is set up by the Chief Justice of the Supreme Court under Article 145(3) of the Constitution for deciding a “substantial question of law as to the interpretation of (the) Constitution”. Arguments in this case started on April 18, 2023, and the proceedings are being live streamed on the Supreme Court’s website.
It must be noted that in 2014, the Supreme Court in National Legal Services Authority Vs. Union of India & Others (NALSA), recognised that transgender persons have Fundamental Rights and are equal moral citizens in the eyes of the law. Subsequently, in 2019, the Madras High Court in Arunkumar & Another Vs. Inspector General of Registration & Others, while relying on NALSA, ruled that the term ‘bride’ under the Hindu Marriage Act, 1955 (HMA) includes transgender women. Since then, there have been a few instances where transgender persons in states like Tamil Nadu and Karnataka have married under the HMA and the Special Marriage Act, 1954 (SMA). However, even these queer marriages were permissible only because the partners were of opposite genders.
Petitions in the marriage equality litigation
The Supreme Court is hearing a batch of 20 petitions pertaining to the recognition of marriage equality in India. These petitions argue for an inclusive and progressive reading of four legislations to allow for recognition of marriage equality – the legislations in question being the HMA, which is the personal law relating to Hindu marriage; the SMA, which is the secular law on marriage and was passed to allow for inter-religious and inter-caste marriages; the Foreign Marriage Act, 1969 (FMA), which lets Indians register their overseas marriages under Indian law; and the Citizenship Act, 1955 that confers legal recognition on the foreign spouse of an Indian citizen or an Overseas Citizen of India.
However, a restricted approach that targets only marriage laws fails to take into account the fact that the body of family laws in India continues to be informed by the binary of gender and heterosexual understanding of sexuality. Consequently, complications will arise if and when same sex / same gender marriages are recognised in law. For an analysis of the limitations of such an approach, read also Can Judges Deliver Marriage Equality? by Saptarshi Mandal.
Similar to the Johar petition, the marriage equality petitions do not adopt the public interest litigation route. Instead, they are writ petitions under Article 32 of the Constitution, wherein directly aggrieved parties, largely upper-caste and cisgender same-sex partners have come forward to claim that denying them a right to marry is unconstitutional. While the prayers in these petitions have also argued for an inclusive reading of the HMA, the Supreme Court has indicated that at this point, it will not go into personal laws and will restrict its scope to secular laws pertaining to marriage. This is aligned with the argument for an incremental approach for the realisation of civil and political rights for queer persons.
Of all the petitions in this case, the one that stands out is Rituparna Borah & Others Vs. Union of India (Borah), a petition filed by a group of four queer-feminist activists and three anonymized couples. First, this petition, unlike the others, was informed by lengthy conversations within queer and feminist circles. Second, the prayers in it go well beyond the legal recognition of same sex / same gender marriages and throw light on the natal violence that queer people experience. It argues that the de-facto next of kin model (understood to include only those related by blood or marriage) for taking legal decisions on behalf of individuals in case of incapacity is undesirable for queer persons as families are often a site of violence for them. The petition thus goes beyond marriage equality in its demands from the Supreme Court.
The petition asks the Supreme Court to issue a direction wherein single persons, who do not want to engage in marital relations, have the right to nominate any person of their choice to take decisions “with respect to healthcare decisions in case of incapacity . . . and assigning any legal right, interest, title, claim or benefit accrued to the person”. For precedent, it draws on the concept of “nominated representative” under the Mental Healthcare Act, 2017 wherein an individual has a right to nominate any person of their choice to take medical decisions on their behalf when they do not have the mental capacity to do so, and extends this concept beyond health decisions.
What is particularly striking about the Borah petition is that it makes a case for legal recognition of ‘chosen’ and ‘atypical’ families. This accounts for the everyday realities of many queer persons wherein subversive friendships and community play a critical role. The petition thus shifts away from the notion that ‘marriage’ is the only form of intimacy worthy of legal recognition. It challenges the centrality of casteist, heteronormative and patriarchal notions that are characteristic of the institution of marriage and family in India.
Counter-arguments raised by the Union of India
The Union of India (UoI) has come out strongly against the marriage equality petitions. Unlike Johar, where it left the matter to the court’s domain, the UoI in its affidavit has insisted that marriage is an institution that is restricted to only “biological men” and “biological women”. It then goes onto argue on the plank of religion, wherein it states “(It should) not be permissible to pray for a writ of this [court] to change the entire legislative policy of the country deeply embedded in religious and societal norms”. The role of religion in shaping personal law, including the union of marriage being restricted to heterosexual marriages, stands front and centre in its counter. Additionally, the UoI has, as expected, relied on the need for the court to exercise judicial deference (by not re-writing legislative intent which recognises only heterosexual unions in laws on marriage) and majoritarian morality as grounds to resist the claims of the petitioners. Finally, it argues that there is no fundamental right violation in denying the right to marry to queer persons as Johar and the Justice K. S. Puttaswamy & Another Vs. Union of India & Others verdict on right to privacy cannot be extended to make a claim for marriage equality.
The UoI reiterated these positions in its second counter-affidavit, adding that the demands raised in the current litigation represent “urban elitist views” which go against “the will of the people” which supports marriages solely between heterosexual persons. Interestingly, they argue that this purported “will” – which reflects the shared social ethos of a wider spectrum of the society – should not be mistaken for majoritarianism. They claim that there is no question of discrimination – and therefore no basis for demanding equality – because ‘same-sex couples’ and ‘opposite-sex couples’ form two “non-comparable classes”.
(Un)surprisingly, the Centre – which has continually been criticised for excluding opinions and concerns of the governments of states and Union Territories from its actions and decisions – has officially requested their views on the ongoing matter. The UoI has also urged the court to include them as co-respondents in the petition, in what can be assumed to be an attempt to garner support and heft on its side.
The politics surrounding marriage equality
As with most social movements, voices within the queer communities have diverse perspectives surrounding marriage equality (and marriage in general), and other queer issues warrant space in public and legal discourses. The authors of this piece spoke with three queer activists to understand their thoughts regarding marriage and the ongoing litigation. While all three agreed that the denial of marriage equality amounted to a violation of the Fundamental Rights of queer persons, they threw light on nuances that have largely been invisible within the mainstream discourse on marriage.
Debunking some of the arguments raised by the UoI, Dr. L. Ramakrishnan, Vice President of SAATHII, asserts that the demand for marriage equality does not come exclusively from the urban elite, but has also been made consistently by working class queer persons across diverse gender identities and geographies. At the same time, he says, “Another school of thought warns us that queer persons shouldn’t fall into the traditionally patriarchal trappings of marriage, and instead explore alternatives such as civil unions. However, I understand that the concept of marriage holds meaning for many members of the queer community, and that should be respected.”
Ramakrishnan adds that the demands for marriage equality themselves are not elitist in nature. But restricting the fight to mere expansion of marriage laws to include queer identities, while symbolically powerful, may serve only the privileged elite. He says, “Apart from a small minority, most queer persons will continue facing discrimination, assault, and violence from their natal families and the society.” Therefore, the right of persons who are not cisgender and heterosexual to marry should be accompanied by policy and legal reform in other areas such as child custody and inheritance, nomination for taking crucial medical decisions, and protection against family violence.
The need to take into consideration other concerns of the community is echoed by Gowthaman Ranganathan, a lawyer and anthropologist. He points out that it is clear that like the Johar petition, most of the petitions in this case are individual-driven and not informed by community consultations. He argues that while appearing as individual petitioners (as opposed to filing a public interest litigation) could be a strategic choice, a process of community consultation could accompany the same, as was the case with the Naz Foundation (India) Trust petition of 2001 against Section 377. Ranganathan adds the over-privileging of marriage inevitably under-privileges other pressing issues that queer persons face, like discrimination and access to other socio-economic rights around housing, employment, and healthcare.
It is critical to point out here that as the litigation on marriage equality was gathering steam, transgender rights activists such as Grace Banu and others were detained by the police for a peaceful protest organised to demand horizontal reservations for transgender persons in public employment and education. A 2020 petition challenging the Transgender Persons (Protection of Rights) Act, 2019, which failed to provide for affirmative action for transgender persons as directed by the NALSA judgement, has not witnessed the kind of swift judicial action seen in the marriage equality matter. Similarly, a petition filed in 2023 by Banu for clarification on reservations was not heard by the Supreme Court, indicating the priorities of the Supreme Court when it comes to queer rights.
Ranganathan raises an interesting point – while the right to marry must be available to all, most of the marriage petitions suffer from a lack of imagination. “How are you (the queer movement) going to annihilate caste?” he poses. The queer politics around marriage has failed to incorporate an anti-caste vision despite desire being deeply caste-coded. Marriages in India, after all, have been the institution via which caste has been maintained through enforcement of endogamy. He argues, “If you (the law) want to facilitate intimacy, then start protecting inter-caste couples”. He adds, “There is no possibility of queer people being happily married until inter-caste couples can be happily married,” an issue he extensively discusses in this article. He says, “One can’t carve out gay marriage in a vacuum where intimacy (such as inter-caste and inter-religious intimacies) is under threat.” Also: “Can legalising marriage stop (queer) loneliness?” asks Ranganathan, adding “Can we stop talking about law and love, and start talking about law and loneliness?”
The demands made in the Borah petition are informed by the legal imagination and community consultation that Ranganathan finds to be lacking in some other petitions. Chayanika Shah, queer-feminist and one of the parties in this petition, says, “Most of the other petitions are from people who have approval from their families – the only thing that they lack in terms of acceptance is a marriage certificate and the legal rights that are tied to marriage.” She says that it was important to bring in perspectives of queer people who face violence from natal families, those who may not want to get married but should be entitled to other rights traditionally emanating from marriage, and those who want to get married, but do not have support from their families. “The demands for recognition of the right to chosen families and nominees are grounded in multiple community consultations over the years on family law and assault laws from a queer perspective,” she adds. Considering societal resistance to inter-caste and inter-faith marriages, including the controversies surrounding Love Jihad, Shah says it was also crucial to demand amendments to the provisions of the SMA regarding notification and objection which endanger non-traditional couples.
At the time of writing this piece, the lawyers representing the Borah petition had not started arguing, and it was unclear whether the court would be receptive towards their demands. If the court reacts favourably, Shah believes that re-imagining the law in the way envisaged by the petition will benefit both queer and non-queer identifying persons by removing the centrality of marriage in multiple spheres of life. The right of all persons to marry will then be recognised along with a complementary reduction of the pressure to marry against one’s will, or at all.
Main graphic courtesy: OpenClipart on Wikimedia Commons