Same Sex Marriage:The Current Conflict And The Way Forward

Barring Of The Same Sex Marriage: A Violation Of The Fundamental Rights

It was inevitable that same-sex couples would soon knock on the doors of the constitutional courts to request recognition of same-sex weddings following the ruling of the Constitution bench in Navtej Singh Johar and Others v. Union of India.In the case of Arun Kumar v Inspector General of Registration(2019) the Madras High Court expressly considered the legality of a cis-trans marriage in relation to Hindu Marriage Act, 1955 and held that it was acceptable.It was held by the Madurai bench of the Madras High Court that the word "bride" used in section 5 of the Hindu Marriage Act, 1955 includes the trangender people who identify themselves as women and the refusal to register such a marriage would be in violation of fundamental rights of the person guaranteed in Article 14,19(1)(a), 21, 25. This judgment though relating to cis-trans marriage can still help us understand about the legality of same-sex marriage in India.

So, there can be a four pronged test of the legality of homosexual marriages vis-a-vis Article 14,Article 15,Article 19 and Article 21of the Indian Constitution. Article 14 of the Indian Constitution states "The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India." 'Equality before law' is a negative concept as it abstains the state from discriminating between the people and maintains that equal persons should be treated alike whereas 'equal protection of law' creates a positive responsibility on the state to provide every individual equal protection of law without discriminating.Differentiation under Article 14 can be done only when there is an intelligible differentia between the groups discriminated against and when thediscrimination is in rational nexus to the aim that is sought to be achieved.Here, the barring of homosexual marriage fails to cross the legal threshold as there is no intelligible differentia backing the outlawing of homosexual marriages. In the Navtej Johar Judgement, the Supreme Court decriminalized homosexuality, which is in line with various studies that have established homosexuality as 'normal'.Therefore the state cannot differentiate between a heterosexual and a homosexual marriage, and render homosexual marriage as illegal.

Article15 of the Indian Constitution says that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.It is interesting to see that the word "gender" is not used here. It is to be understood that"sex" and "gender" are two different concepts. While "gender" refers to one's sense of self, feeling, and what they identify as, "sex" is a biological and medical notion that depends on chromosome count, hormones,genitalia, and other diverse secondary features.In the historic decision of NALSA v. Union of India (2015), the Supreme Court made it clear that "gender" is included in the term "sex."As a result, the current legislation and stance prohibiting homosexual marriage is only based on their "gender" and therefore clearly in violation of Article15.

Article19(1)(a) of the Indian Constitution talks about the freedom of expression, which would include the expression ofone's self-identified gender. This proposition was supported by the apex courtin the NALSA judgment as the court held that values of privacy, self-identity,autonomy and personal integrity are fundamental rights guaranteed to members of the transgender community under Article 19(1)(a) of the Constitution of India and the State is bound to protect and recognize those rights. Also, the limitations to the fundamental rights under Article19(1) is contained in the subsequent Article 19(2), which in no manner is breached by the expression of one's self identified gender.

Article 21 of the Indian Constitution talks about the fundamental right to life andliberty and can be bifurcated into two rights, which can be then assessed inrelation to the legality of the homosexual marriage. First, the Right toDignity is an essential right, as pronounced by the Supreme Court in the Francis Coralie Mullin v.Administrator, Union Territory of Delhi (1981). It was held by the Apex court that the right todignity forms an essential part of our constitutional culture which seeks toensure the full development and evolution of persons and includes "expressing oneself in diverse forms, freely moving about and mixing and co mingling withfellow human beings". Marriage as a social institution facilitates "co-mingling " and "mixing" with fellow human beings . Therefore, barring homosexual marriage would be a violation of the Right of Dignity as recognitionof one's gender identity lies at the heart of the fundamental right to dignity and as established, marriage as an institution is necessary in making an individual a social being. Moving ahead, protection of personal autonomy isalso guaranteed by Article 21 as held in the Anuj Garg v. Hotel Association of India.Marriages fall under the positive rights of individuals to make their own life decisions, and homosexual marriages are no different. In the Justice K.S. Puttaswamy and Anr. vs. Union of India (UOI) and Ors., it was held by the Supreme Court that Article 21 would also include the Right to Privacy, and inthe Shafin Jahan vs. Asokan K.M. and Ors,, the Supreme Court established that the right to choose marital partner would be a part of the right to privacy.

Thus through this four-pronged test vis-a-vis fundamental rights, there is no reason to dis allow homosexual marriages. Further, Article 16 of the Universal Declaration of Human Rights, of which India is a signatory, states that "men and women of full age, without any limitation due to race, nationality or religion,have the right to marry and to found a family." Here too, to be in concurrence with the UDHR, homosexual marriages should be allowed by the Indian state.

Every government imposes some kind of restriction on citizens' freedoms; examples include paying taxes, serving in the military, and various other things. It is evident that even the majority of liberal democracies impose some limitations in order to preserve democratic institutions. Greater limits, however, are occasionally put in place to defend some sort of religious uniformity or cultural practices rather than to defend these democratic institutions. Sociological analysis of many civilizations reveals that many groups look for legal means to curtail the freedom of their own members in the guise of maintaining cultural, traditional,and religious unity.The world's religious practises paint a picture of discrimination against minorities who lack political influence, where theocratic and patriarchal organizations uphold the rights of the majority and religious orthodoxy is strengthened. Since we have demonstrated in this article that denying gays the right to marry violates several fundamental rights, any claims that Indian society is "not ready" to accept the idea of same-sex marriage are purely motivated by the desire to preserve a so-called cultural purity and nothing else.

The Way Forward

As we have established with evidence in this article that LGBTQIA+ individuals should have the right to equality, a freedom from prejudice and a right to have a relationship with people of the same sex while doing so they also deserve the same amount of legitimacy as heterosexuals couples. Just because we have decriminalized homosexuality we cannot claim that people belonging to the LGBTQIA+ community are at an equal footing to heterosexuals since a sense of equality would not come unless we give them marital privileges such as adoption,inheritance, maintenance etc.The first ideal solution is that new laws can be introduced or existing laws can be amended, but doing so is highly challenging because these personal marriage laws have been in use for many years and are considered to be custom.Therefore, the Special Marriage Act of 1954, which was enacted as a secular marriage law in India,must be amended in order to remove the presumption of the heterosexual character of marriage and make it inclusive of all gender identities and sexual orientations.. But Given the government's apparent determination to preserve the institution of marriage, the LGBTQIA+ community may instead call for the establishment of a civil partnership system that would grant same-sex couplesthe same legal protections as heterosexual couples. The introduction of newl egislation covering same-sex relationships, such as inheritance and adoption,will be made possible by the system of civil unions and partnerships. Innations where same-sex marriage is allowed, civil unions or partnerships areaccorded the same legal standing as same-sex marriage. Numerous Europeannations, as well as South Africa, have a civil partnership system inexistence.However, restricting homosexual couples to civil union privileges and removing the option of marriages is discriminatory in and of itself because it gives the LGBTQIA+ community a choice that is viewed as less desirable than marriage.Even though in India a draft 2017 UCC bill tried to make the utopian dream of same-sex marriage or even a less desirable alternative of civil unionsa reality in the Indian legislative framework it was completely set aside because of the "constitutional protection extended to personal laws".

Views are personal.