LGBTIQ represents persons who identify themselves as Lesbians, Gays, Bisexual, Transgenders, Intersexuals and Queers. These are the people who do not fall in the category of male and female, some biologically and some in terms of their sexual orientation. Legal Recognition of Same-Sex Marriage.
After the historic judgement that decriminalised consensual sexual interaction between homosexuals, the question that arises is that after a long battle for sexual freedom, what will be the next step towards the complete exercise of civil rights. Civil rights and fundamental rights include rights like the right to choose one’s own partner and the right to marriage. The decision of the Supreme Court in September 2018, in Navtej Singh Johar v. UOI, held that LGBTIQ people have the same civil and fundamental rights as the heterosexual community. In order to give enabling provisions to enforce the same civil and fundamental rights, the legalisation of marriage should have been done. But unfortunately, India has no laws for same-sex marriage. In the further sections of Legal Recognition of Same-Sex Marriage, we will explore the need for marriage laws in detail.
The Special Marriage Act, 1954
The statement of objects and reasons of the SMA, 1954 states that the Act seeks to provide a special form of marriage which can be taken advantage of by any person in India and by all Indian nationals in foreign countries, irrespective of the faith which either party to the marriage may profess. The Major 2 exceptions mentioned in the statement of objects and reasons are (a) Marriage must not fall under the degrees of prohibited relationship, and (b) the Male must have attained 21 years of Age and the Female must be 18 years of age, for giving consent.
The Special Marriage Act, 1954 was put into place to provide for inter-caste, inter-sect and inter-class marriages, where the parties do not renounce their religion while registration of their marriage. The Act does not explicitly provide for same-sex marriage. Neither the provisions nor the statement of objects provides for such marriages. There are many provisions which are purely heterosexual in nature, for instance, Section 4(c) of the Act which declares the attainable age of marriage specifically mentions the word ‘male and female’ in the language. The provisions of the act as well as the Statement and object of reasons of the act is purely heterosexual and thus, discriminatory in nature.
Constitutional Perspective of Same-Sex Marriage
Non-recognition of marriage for LGBTIQ will be a disrespect to the individuality and identity of homosexuals and discriminates against them by excluding them from the institution of marriage, without any basis and thereby violating their constitutionally guaranteed fundamental rights under the Constitution of India.
In the Suresh Koushal v. Naz Foundation , the court observed that “Gays, lesbians, bisexuals and transgenders constitute a very minuscule part of the population, this is perverse due to the very reason that such an approach would be violative of the equality principle enshrined under Article 14 of the Constitution. The constitutional framers could have never intended that the protection of fundamental rights was only for the majority population. If such had been the intention, then all provisions in Part III of the Constitution would have contained qualifying words such as ‘majority persons’ or ‘majority citizens‘.
Instead, the provisions have employed the words ‘any person’ and ‘any citizen’ making it manifest that the constitutional courts are under an obligation to protect the fundamental rights of every single citizen without waiting for the catastrophic situation when the fundamental rights of the majority of citizens get violated.”
The Hon’ble Court had also held, in Navtej Singh’s case, that: “Members of the LGBT community are entitled, like all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution.”
The Hon’ble Supreme Court of India held, in Shakti Vahini v. Union of India , that two adults may choose their own life partners as the right is conferred under Article 19 and 21 of the Indian Constitution. The court threw emphasis on the protection of the rights and the rights shall not be compromised due to the conception or thinking of a group of people. Further, the court, in Asha Ranjan v. the State of Bihar , recognised a woman’s freedom of choice to choose her own partners with the ambit of Article 19 of the Indian Constitution, which must essentially be extended to the LGBTIQ community.
Article 21 protects the dignity of human life, one’s personal autonomy, one’s right to privacy, etc. Right to dignity has been recognized to be an essential part of the right to life and accrues to all persons on account of being humans. Recognition of one’s gender identity lies at the heart of the fundamental right to dignity. Every person has a right to sexual identity and right to be treated with dignity for that identification. No matter how a person self-determines one’s own identity, that identity is to be protected and recognized by law equally and without discrimination. The expression of self-identity falls within the domain of personal autonomy and involves the right to privacy and dignity.
In the expanded meaning attributed to Article 21 of the Constitution, it is the duty of the State to create a climate where members of the society belonging to different faiths, caste and creed live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardized or endangered.
Article 21 is the heart and soul of the Fundamental Rights enshrined in Part III of the Indian Constitution, which even the State has no authority to violate. Article 21 includes all those aspects of life which go on to make a person’s life meaningful and have been recognized as an essential part to living with dignity and thus the Court held that the recognition of one’s Gender Identity is at the heart of the fundamental right to dignity. Self-determination of gender is an integral part of personal autonomy and self-expression and thus falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India. Article 21 of the Constitution and the right of an adult to choose a partner is a crucial aspect of individual liberty and the state is powerless to negotiate upon the said liberty.
Since the right to marry is a fundamental right coming under the ambit and scope of Article 21 of the constitution of India guaranteeing the right to life and personal liberty. Non-recognition of marriage laws for the LGBTIQ community will be a clear violation of fundamental rights guaranteed under the Constitution of India.
Social perspective of Same-Sex Marriage
If we take the social perspective of the public into consideration. One of the main arguments that is put before, is that procreation is not possible in the marriage of homosexuals and since it is one of the primary purposes of marriage, the marriage should not be legalized. Another thing put forward is the denial of either a mother or a father to the child. Both mother’s and father’s role is crucial in the life of the child and denial of either of them will make the life of the child difficult. Both the arguments are correct in some or the other way, but there is a magical concept like adoption and there are many other options available like surrogacy and IVF, which can solve the procreation problem and there are many instances of impotency in heterosexual couples as well. The mere argument of the impossibility of procreation proves to be very weak, and thus is not a valid reason for not giving the LGBTIQ community the right to marry.
LGBTIQ people should have the same rights as the majority of people have. They are entitled to all the fundamental rights guaranteed by the Constitution of India in the same way as heterosexual people, this includes recognition of marriage laws for same-sex people. These people have been facing social and legal oppression for a long time. The decriminalization of Section 377 was the first major step towards the recognition of all the fundamental rights. They need an enabling provision that gives them the rights which they are entitled to exercise.
- (2018) 10 SCC 1.
- (2014) 1 SCC 1.
- (2018) 7 SCC 192.
- (2017) 4 SCC 397.
Tripti khirwal| Gd Goenka University