LGBTQ individuals' right to marry is next divide for Indian legal landscape to ford
Abeera Dubey and Sangram Chinnappa
Picture Credit: News9
In a first, a three-member Supreme Court collegium headed by Chief Justice NV Ramana recommended the name of Saurabh Kirpal, an openly gay senior advocate, for the post of Delhi High Court judge, last month. The collegium had deferred Kirpal's recommendation on multiple occasions, with the union government raising objections to his appointment. It's hard not to conclude that his nomination, pending since 2017, has something to do with his sexual orientation. Reportedly the stand taken by the government was that the Intelligence Bureau deemed Kirpal's Swiss partner a "security risk". This is from the same government that has been steadfast in denying same-sex partners.
So Kirpal's recommendation is indeed a welcome step for the LGBTQ+ community, from the judiciary, where petitions currently allow same-sex marriages in Delhi and Kerala High Courts. Kirpal is a senior advocate at the forefront of the landmark judgment in Navtej Singh Johar v Union of India, which led to the decriminalisation of Section 377 of the Indian Penal Code (IPC). He is also a board member of the Naz Foundation Trust, an NGO that has historically fought for the decriminalisation of homosexuality in India. He will be the first openly gay judge in India if he is appointed.
Kirpal's appointment is not only a welcome step in giving visibility to members of the LGBTIQA+ community in the judiciary, but also a hope for many such impending litigations in the courts.
One such case is currently under consideration at the Delhi High Court. The court has clubbed multiple petitions contending that same-sex marriages are impossible, despite the Supreme Court decriminalising consensual homosexual acts, and sought a declaration to recognise them under the Hindu Marriage Act and Special Marriage Act. Solicitor General Tushar Mehta, representing the government in the case, said, "The law as it stands...personal laws are settled, and marriage which is contemplated to be is between a biological man and a biological woman". He argued that a 'spouse' means either husband or wife, and 'marriage' is associated with heterosexual couples. The government should be asked to clarify its definition of a "biological man" and a "biological woman." The government's initial a!davit in the case stated that despite the decriminalisation of Section 377 of the IPC the petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country as family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender.
It claims that living together as partners and having a sexual relationship with same-sex individuals [which is decriminalised now] is not comparable with the Indian family unit concept of a husband, a wife, and children, which necessarily presuppose a biological man as a 'husband,' a biological woman as a 'wife' and the children born out of the union between the two". The government's stand is unequivocal — just because homosexual sex has been decriminalised does not mean homosexuality is being legitimised. The same government has promised the citizens a Uniform Civil Code, a common law governing personal matters like marriage, divorce, adoption, inheritance and succession for all citizens of the country, irrespective of religion, making personal laws alike and equal for all. One cannot help but point to the irony in the central government wanting to bring in a Uniform Civil Code for extending equal marital rights to all Indians.In traditional hetronormative understanding, the right to marry is a fundamental right in our country. In India, the law on marriage is either governed by personal laws of di"erent religions or the Special Marriages Act, 1954. Every Indian has a right to marry a person of their choice, regardless of religion, caste, or class. The Supreme Court has declared that the right to marry a person of one's choice is integral to Article 21 of the Constitution. However, the law as it stands today does not extend the same right to persons from the LGBTQ+ community whose marriage cannot be categorised in the husband-wife category. Marriage comes with a long list of rights that most of us take for granted, such as automatically becoming your partners' legal heir, family health insurance plans, becoming eligible to a host of government schemes such as compassionate appointments, pension, etc, which unfortunately people from LGBTQ+ community, as it stands, are being excluded from.
The stand of the Central government before the Delhi HC is rather curious considering that the Madras High Court in 2019 has held that a trans woman, even without undergoing Gender A!rmation Surgery (GAS), is to be treated as a woman under the Hindu Marriage Act and can marry a cis-man [sic] under the same. The courts have not yet passed any orders allowing same-sex marriage, but the order of the Madras HC makes it abundantly clear that marriage is not limited to a biological man and biological woman.
The Indian legal landscape vis-à-vis the rights of the LGBTIQ+ has undergone a tremendous change in the last five years. The 2014 Supreme Court judgment in the NLSA case for the first time laid down the rights of the transgender community and addressed the systemic oppression that they face from the state and society. In this judgment, the court also touched upon the issues of the fluidity of gender and the right of people to express their gender identity without fear. The next major step was won when the Supreme Court struck down Section 377 of the IPC and declared that any consensual sexual act between two persons is not a crime. This was a long and drawn-out battle when the LGBTQ+ community fought for its very existence and soul. The members of the LGBTQ+ community were finally able to live a life of dignity, as any consensual sexual act in the privacy of one's bedroom is no longer a crime. The Supreme Court stated that LGBTQ+ persons deserve to live a life unshackled from the shadow of being 'unapprehended felons'.
During this entire process, the State was almost always vehemently opposed to any change to the law and never seriously considered amending the law to allow an LGBTQ+ person to legally carry on consensual sexual acts. However, when the Supreme Court finally heard the matter, the central government threw its hands up, and abdicated all responsibility in defending its law. Instead, it asked the judiciary to decide on the issue. This act was essentially the legislature abdicating its responsibility to weed out an outdated law, instead, forcing the judiciary to do their dirty work for them. If the legislature had shown some spine and amended the law themselves, countless persons would have been spared the indignation and persecution of Section 377. With 377 gone, our legal landscape is again at the cusp of another transition, the right of non-binary people to marry and the state's duty to recognise such marriage. And once again, the Courts have taken charge to mould the way towards an equal society. Over the years, during this long-drawn battle, relief was provided by various High Courts. The Uttarakhand High Court observed that even though same-sex couples cannot enter into marriage, they have every right to live together, showing an increasing attempt to provide maximum protection within the ambits of existing law. This year, the Madras High Court delivered a landmark judgment in a case where a lesbian couple approached the court seeking a direction to the police not to cause harassment and protection from any form of threat or danger to their safety and security. The one-judge bench consisting of Justice N Anand Venkatesh decided to undergo counselling themselves to challenge their preconceived notions of sex and sexual orientation. The judge remarked, "Upon going through the report of the psychotherapist, I gained better understanding than I had at the commencement of the proceeding and that the second phase involved a further counseling for the parents and a psycho- educational session for myself explains that it had nothing to do with assessing where the Petitioners stand.".
As per the judgment, a law cannot be e"ective without it being acknowledged by theiety and the judiciary. The constitutional courts have a significant role in spreading this awareness and awakening society. The judgment lays down guidelines for police and prison authorities to conduct programmes at regular intervals on steps to be taken for protection from and prevention of o"enses against the LGBTQIA+ community and for educational institutions to have an e"ective change in curricula of schools and universities to educate students on understanding the LGBTQIA+ community.
Looking at the Indian courts' direction, one can hope that the courts will eventually outlaw this discrimination in marriage. For instance, in the Madras High Court judgment of 2019 talked about earlier, the court said, "Seen in the light of the march of law, the expression 'bride' occurring in Section 5 of the Hindu Marriage Act, 1955 will have to include within its meaning not only a woman but also a transwoman. It would also include an intersex person/transgender person who identifies herself as a woman. The only consideration is how the person perceives herself". Here, even though the court only interpreted the law in such a fashion that allowed trans women to fit and be covered in a hetronormative legislation, the liberal interpretation indicates that the Indian Courts are leaning towards expanding rights.
A few years ago, the Supreme Court of the United States of America, while legalising same-sex marriages, had stated, "No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than one's hope was. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilisation's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. The judgment of the Court of Appeals for the Sixth Circuit is reversed. It is so ordered."
As the jurisprudence around the protection of expression of gender identities progresses, it is incumbent upon the courts not to limit themselves to merely curtailing unjust interference by the state but to actively grant positive enforceable rights at par with other citizens of India and other progressive legal systems. With the LGBTQIA community fighting for another fundamental right in our country, one can hope that the recognition comes soon, saving them any more heartburn and distress. As the Supreme Court in the case of Navtej Singh Johar rightly stated, "History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have su"ered through the centuries."
This article was first published on News 9 on December 5, 2021
