A strong case exists for marriage equality

Context

A recent statement by a Member of Parliament (MP) on same-sex marriages in India has once again stirred up the debate on marriage equality.

About

• The MP stated that same-sex marriages are against the cultural ethos of India. 
• This is amidst a petition for marriage rights of same-sex couples (under the Special Marriage Act, 1954) pending before the Supreme Court of India. 

Same-Sex Marriage

• It is the practice of marriage between two men or between two women.
• Same-sex marriage has been regulated through law, religion, and custom in most countries of the world.
• As of 2022, marriage between same-sex couples is legally performed and recognized in more than 30 countries.

Ongoing Debate over Legality of Same-Sex Marriage

• Question over the legitimacy of the institution:
  • There is a question that whether courts should intervene in marriage rights or leave it to the wisdom of Parliament. 
  • However, another factor that may guide the Court urging it to intervene here is that it previously decriminalised consensual same-sex conduct on the basis of the ‘right to equality’ and not merely the ‘right to privacy’. 
• Violation of Right to Privacy or Right to Equality:
  • An aspect to the LGBTQ community’s legal battle has been whether the law criminalising sexual conduct has been violative of the right to privacy or the right to equality. 
  • In the former, one’s sexual orientation and choice of a sexual partner were held intrinsic to privacy and personal liberty. This calls for a complete ‘hands-off’ approach from the state where it should not interfere.
  • In the latter, equal treatment of same-sex couples with those of heterosexual couples was considered paramount. This will require the state to take positive steps to ensure equal treatment in all spheres of life. 
• Global Precedents For Right to Privacy:
  • The European Court of Human Rights, in Dudgeon vs UK (1981), struck down the offence of buggery in Northern Ireland as violative of Article 8 of the European Convention on Human Rights because it disproportionately restricted personal and family life. 
  • The court adopted a privacy approach and did not go into the question of equal treatment under Article 14. 
  • In Oliari vs Italy, the court reasoned that states could not be obligated to grant marriage equality, provided there was some form of legal recognition of their rights. 
  • Many European countries had not yet granted marriage rights and only recognised civil partnerships shaped the court’s decision.
  • The U.S. dealt with this quite differently since it decriminalised same-sex relations (Lawrence vs Texas 2003) and granted marriage equality (Obergefell 2015), both under the due process clause of the Fourteenth Amendment of its Constitution, which prohibits the state from taking away personal liberties without substantive and procedural fairness. The focus was thus on personal liberty.
• Global Precedents For Right to Equality:
  • A conscious decision by LGBTQ lawyers and activists in South Africa to litigate rights based on ‘equality’ made sure they won successive battles, beginning with constitutional protection of ‘sexual orientation’ and judicial recognition of marriage, adoption, etc. 
  • Dealing with decriminalisation in National Coalition for LGBTQ (1998), Justice Ackermann compared the privacy and equality approaches and opined how the equality approach was enabling and granting greater protection to homosexual persons.
  • In Fourie (2005), the Constitutional Court rejected the state’s argument that the Constitution only protected the right to establish family in private life without state interference and not to marry. 

Arguments in favour of legalising Same-Sex Marriage

• Fundamental Right: 
  • Right to marry a person of one’s choice is a fundamental right guaranteed under the Constitution of India to each person and has been recognised explicitly by the court.
• Right to equality: 
  • Barring them from marriage violates their right to equality.
• The Special Marriage Act of 1954: 
  • It provides a civil form of marriage for couples who cannot marry under their personal law.
• Global practice:
  • According to global think tank Council of Foreign Relations, same sex marriages are legal in at least 30 countries, including the United States, Australia, Canada and France.

Arguments against legalising Same-Sex Marriage 

• Against Biological relation:
  • Marriage in India can be recognised only if it is between a biological man and a biological woman capable of producing children.
• Fundamental rights are not absolute:
  • Fundamental right cannot be an untrammeled right and cannot override other constitutional principles.
• Judicial interference:
  • The government has said that any interference by a court in the marital statute based on personal laws will create havoc in society and will run against the intent of Parliament in framing the laws.
• Absence of civil rights issues: 
  • The 2018 judgment of the Supreme Court decriminalised homosexuality but did not get into civil rights issues. 
  • As a consequence, same-sex relationships are legal but civil rights such as marriage, inheritance or adoption, are not guaranteed to the lesbian, gay, bisexual, transgender, queer and intersex community.
• Lack of legal framework:
  • The legal framework governing the institution of marriage in India does not presently allow members of the LGBTQ+ community to marry the person of their choice.
  • Couples cannot protect the family, and matters like adoption, opening a joint bank account or admission of children remain uncertain on account of failure of the law to recognise same sex unions.

India’s Stand on Same-Sex Marriage

• India adopted the South African approach in Navtej Singh (2018), i.e., the equality approach. 
• The top court read down Section 377 IPC and decriminalised consensual sexual conduct on the basis that it created an unreasonable classification for same-sex persons under Article 14, besides being violative of bodily autonomy under Article 21. 
• As per the majority, unequal treatment to homosexual persons meant that they were treated as a separate class of citizens. 
• Any classification that perpetuated stereotypes was violative of Article 15. 
• Further, sexual orientation implicated both negative and positive obligations on the state. 
• Besides non-interference, it called for a recognition of rights to ensure true fulfilment of same-sex relationships. 
• Evidently, the Court focused on an all-encompassing meaning of equality in all spheres of life, essential for dignified living to overcome prejudice. 
• With this strong equality-based reasoning, which is a notch higher than mere protection of privacy, the exclusion of marriage rights (under challenge) appears difficult for the state to justify. 
• Previously, even in NALSA (2014), the Court acknowledged the importance of sequential rights arising from ‘gender identity’ (employment, health care, education, equal civil and citizenship rights).

Way Ahead

• Focus on Equality:
  • The foundation of equal treatment ought to pave the way for marriage equality in India and not be left to the vagaries of the legislature.
  • The equal treatment would be significant in the Indian context where marriage holds a special cultural and religious value, a denial of which may reinforce the stigma faced by same-sex couples.
• Providing with Sequential Rights:
  • Once equal treatment with heterosexual persons is established, it ought to become simpler to seek sequential rights of equalizing age of consent, prohibiting employment discrimination, rights in marriage, adoption etc..
  • The Court may be the only hope in claiming sequential rights where no active steps have been taken by the Government since the Court’s decision in 2018.

Source: TH