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Section 377: In pursuit of marriage equality

With Section 377 having been struck down, it is time society and government went into the question of same-sex marriages.

Sughosh Subramanyam & Sanskruti Samal | New Delhi |

Now that Section 377 of Code of Criminal Procedure has been de-criminalized with respect to consenting samesex couples by the Supreme Court of India in the Navtej Singh Johar Case, we are in a phase where we need to decide whether to keep those relationships under the hood or to accept them by legitimising such relationships. As gender orientation has been recognized as a “suspect class” claiming equal protection against discrimination by the Supreme Court, it is to be seen what Courts will do if same sex marriages take place. We refer to them as “suspect class” as, although the right of self-determination is inherently imbibed in the concept of right to live a dignified life, historically this class has been denied its identity. Moreover, gender orientation is fundamental to one’s identity. These traits are unequivocally immutable and central to a person’s identity, and it is not for the state to penalize a person for refusing to change it. In the wake of the celebrated decision, we have all read that many same sex couples were married.

Through this article we seek to question and also address the issue concerning the legal sanctity of their marriage and the obligations that must entail from such unions. This topic which Justice G. S. Singhvi once called an “issue relating to the miniscule” in an earlier judgment, however, made the Government jittery and uncomfortable to venture in the case of Navtej Singh Johar. The Government left the case to the ‘wisdom of the court/judges’ and for now it may have recused temporarily from going into the bigger debate on the validity and legality of such unions.

However, this issue would come back and haunt them in near future. Considering the position, we need to understand whether the unequal situation which has occurred due to disparity in recognition of the married status between same-sex and different sex couples are compatible with ideals of the Constitution of India?

READ | What is Section 377? 

Interestingly, Justice Indu Malhotra concludes her opinion in Navtej Singh Johar Case, with an apology to the LGBTQ+ communities for enduring centuries of discrimination and social ostracism orchestrated by antiquated laws of the Victorian era. But such apologies would be meaningless unless we act fast and stop decades of future tussle and legitimise those relationships instantly. If at all the issue is taken up, either by the courts or parliament, the first aspect which needs to be addressed is whether a person in India has a fundamental right to marriage or is it a qualified legal privilage? Although this question may seem naive to ask, it for sure will raise certain eyebrows among legal pundits. In the Hadiya Case, Justice D. Y. Chandrachud, adopted touch bearer for the liberals within the Court, recognizes the existence of this inviolable right in the following manner.

“The absolute right of an individual to choose a life partner is not in the
least affected by matters of faith. The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme.”

Although this was not the opinion of the majority, yet we can safely assume that a similar path will be threaded by the Courts in view of the recent developments in law concerning privacy and human rights. It is normatively bound under the law to recognize them considering that Indian equality jurisprudence has been galloping at light-year speed recently.

Even if the Government may not have the political will to recognize such marriages within India for now, deeper concerns emanate for those who are married elsewhere, for example in a jurisdiction such as England where ‘same sex marriages are valid’, and their treatment within India. Although complications are bound to arise from such a situation, and Courts may be able to address some issues, the individualised approach of the Court may act as a barrier in having a wholesome solution.

As there is insufficient legal framework to maintain and sustain such marriages/unions in India, a judge may be compelled to say, “Well, it is not at all difficult to empathize how gays and lesbians etc., having suffered discrimination and exclusion, feel about the barriers in India to their union. However, I must base my judgment not on the social policy or the sentiment of people, but on concrete laws, which I do not find.’. Such reasoning may point out that Courts in our country, although sometimes described as activist, have shortcomings and cannot fill the void which majoritarian institutions are supposed to fill, more so when the topic like the present one has poly-centric dimensions to it.

Although the Court may have to take an opinion, we must understand that unlike some Western societies, a far larger bias exists in India concerning ‘gender stereotyping’.Sociologically speaking, we have to acknowledge that Indian society has inherently assigned specific cultural roles and has standardized the norms regulating the unit called “family”. In this norm-oriented society, the roles assigned to the “father” and “mother” are clearly distinguished as the bread earner and the care-giver. In this set up, where do same sex couple stand? Who decides the roles? Are we ready yet to break these inherent rules and accept family as a unit without assigning these gender roles? Admittedly, the process of socialisation begins within homes where the children themselves witness the different role played by their parents. In such a scenario, a child nurtured in a household with gender neutral circumstances should not be stigmatized; rather as a society we should normatively progress towards gender fluidity and aim for a society free from gender stereotyping.

Such issues need to be appropriately answered, before a call on the legality of such unions are taken. We must warn that the impact and obligations of such ‘marriage’ may not per se be limited to consenting adults inter se, rather, they are bound to spill over to children and society as well. Courts in India are not equipped and should not take such policy decisions on complicated social issues in the name of ‘transformational constitutionalism’, more so when it comes to matrimonial obligations and likewise, without a detailed understanding of its innards.

We should recognize that the right to marriage for same sex couples is a thorny topic in the societies and has created equal difficulties in other jurisdictions as well. In Valliantos v. Greece, the Strasberg Court [EU institution], did provide that non-recognition of same sex couples within the meaning of ‘civil union’ violates the equality clause under the European Convention of Human Rights, However, it did not address the sticky issue of ‘right to marriage’ with respect to same sex couples under Article 12 of the Convention. Given the latitude the Strasburg Courts give to the State Parliament, there is not much expectation from them either to address the same as Article 12 stands as a qualified right subjected to the national laws in Europe.

Coming back to India, it can always be argued that denial of full enjoyment of right to marriage is in effect denial of the essence of right to life and liberty. The Government needs to take a proactive step in providing some respite for such couples by looking into feasibility of a new law to regulate them and further introduce comprehensive changes in the existing legal framework. It must be noted that there are multiple rights which comes from the marital status and having a shared household. This would automatically increase the access to multiple social schemes and beneficial programs, for example; grant of medical benefits to the spouse, grant of pensionary benefits etc. Further, the law also has to grant them protection against domestic violence, sexual violence, rape etc.

Moreover, one of the most germane questions which arise for consideration is the right to procreation and adoptive right of homosexual couples. At this pertinent time, we must remind ourselves that the rights which we take for granted have been denied to these groups for ages. How does one lead a dignified life amidst such ambiguity?

As a first step at least, Government would be expected to constitute an expert group or ask the Law Commission to address the complex matrimonial questions relating to the legality of such marriages. Considering the fact that the present Government may be hesitant to take a radical approach, looking at the recent clashes between competing pressure groups on various socio-political issues, it may be a difficult battle ahead for the LGBTQ+ community. The Government may not be willing to undertake any recourse unless Court asks it to legislate on it or it is brought to the cognizance of the ‘national consciousness’.

However, we believe that the legislature alone cannot bring about the change we desire, it is rather the people who have to take a stride forward. Thanks to the mainstream media and cinema, this discourse is being disseminated amongst the masses.

Although the road ahead is very arduous, this journey cannot be successfully undertaken without the active participation of the public. It’s high time we got rid of the taboo and open fresh dialogues which were long due. In our considered opinion any further delay in recognition of such marriages/unions is a dis-service to the inevitable.

(Sughosh Subramanyam & Sanskruti Samal are, respectively, a practising advocate and a research assistant at the Supreme Court of India)