A writer and member of the lesbian, gay, bisexual and transgender community holds the pride flag while waiting to hear the judgement on same-sex marriage by the Supreme Court in New Delhi, India, October 17, 2023.
Credit: Reuters Photo
The Stonewall uprising, which remains a galvanising force for sexual minorities across the world to assert their rights, took place in the summer of 1969, more than half a century ago, in New York. Yet, in 2023, despite being the largest democracy in the world, India is unsure about the right of individuals to marry according to their choice.
We are not alone in this scenario since only 34 countries have legalised marriage between same-sex couples, even though 133 countries have decriminalised homosexuality. The anticipation that India will soon join the group of 34 went in vain as the Constitution Bench of the Supreme Court, which decided the same-sex marriage case held on October 17, with a 3-2 majority, that non-heterosexual couples cannot claim an unqualified right to marry.
Though the Bench was unanimous in recognising the discrimination and hardships faced by queer couples, it refused to legalise same-sex marriages and left the question to be taken up by the legislature. By leaving it to the legislature, the apex court has refused to recognise the civil union of adults in a same-sex relationship. The reason cited is that the Special Marriage Act, 1954, does not recognise such unions, and the court would not be justified in declaring the law unconstitutional for such an omission.
Gender neutral statute
The above aspect was the chief hurdle which stopped the court from bringing queer couples into the protective field of the secular marriage law. However, the said conclusion appears to be a hyper-technical one as the court could have meaningfully interpreted the law to extend the benefits of the same to individuals beyond the gender binary. From the language employed in the statement of objects and reasons, and other relevant provisions, the gender neutrality of the statute could easily be inferred. There is an abundance of gender-neutral words such as ‘any person in India’, ‘a marriage between any two persons’ and ‘either of the parties’, etc. in the statute. Moreover, the terms ‘husband’ and ‘wife’ are not exclusively meant to denote couples in heterosexual marriages.
A Constitution Bench of the Supreme Court in the case of 'The Senior Electric Inspector vs Laxmi Narayan Chopra And Others (1962)’ held that “in a modem progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them.” Thus, the court enlarged the meaning of the term ‘telegraph line’, mentioned in the Telegraph Act, 1885, to include within its realm the ‘wireless’ lines.
If the same analogy is applied to the Special Marriage Act, 1954, the law came into force in the first decade of our Independence, and we know that then the discourses governing LGBTQIA+ rights were not as vocal as today. That might be the reason behind Parliament not directly making an address in this regard. Even then, the legislature had no intention to exempt non-binary people from the ambit of the Act, and the apex court should have appreciated the same by giving the statute an enlarged meaning befitting a modern progressive society.
Fundamental right to marry
The unanimous view that the right to marry was a statutory right and not a fundamental right, became the second hurdle that prevented the apex court from exercising its powers under Article 32 of the Constitution.
In fact, it can be seen as a retraction from the earlier decisions of the court. A nine-judge Constitution Bench in the landmark verdict of Justice KS Puttaswamy (retd) and another v. Union of India and others unanimously held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21”. While concluding the judgment, it was made clear that “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation…”.
Close in the heels of the judgment in the Puttaswamy case, in Shakti Vahini v. Union of India the court opined, “It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognised under Articles 19 and 21 of the Constitution.” Shortly thereafter, it was held in Shahin Jahan v. Asokan K M, with reference to Article 16 of the Universal Declaration of Human Rights and the Puttaswamy case that “The right to marry a person of one’s choice is integral to Article 21 of the Constitution.”
Despite all the shortcomings, the verdict is a glimmer of hope in the struggle for equal rights as it stipulates concrete measures to be implemented by various authorities to safeguard the rights of sexual minorities. Though the battle has been lost for the time being, the recognition and sanctity the court has accorded to same-sex relationships is unparalleled. The momentum it has created would eventually pave way for the decisive solution.
(Ron Bastian is a freelance writer and author.)
Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.