A five-judge bench has been constituted to hear the petitions on same sex marriage, and in this case, the counter affidavit filed by the union of India on March 12, 2023 sharply opposes the prayers of the petitioners. Several arguments—some based on the “sanctity of the institution of marriage” and “others relying on precedents”—were made by the Union in its affidavit.
This article discusses the union of India’s counter affidavit and the mask of legislative competence it uses to cover the lack of understanding of rights jurisprudence that has evolved over the past few years. The first part deals with the affidavit itself, while the second part deals with a brief history of how amendments in marriage laws were received in the country. The third part deals with the case of Navtej Singh Johar vs Union of India and its relevance to the present case, which the union of India appears to have wilfully ignored.[1]
The decriminalisation of Section 377, Indian Penal Code, 1860 by the Supreme Court in the case of Navtej was only the first of the many progressive steps that are needed for the protection of rights of LGBTQ community.
The petitions that were filed in the Supreme Court deal with three laws. One is the Hindu Marriage Act, 1955(HMA); Special Marriage Act, 1954(SMA); Foreign Marriage Act, 1969 and the Citizenship Act, 1955. The prayers in the petitions range from pleading that the court gives its interpretation on the notice period and objections to be allowed under the SMA to also urge the provisions of this law to allow and include same sex marriages. A detailed understanding of the provisions under this law is kept for another day.
I. What does the Centre’s Counter affidavit say?
The arguments in the controversial affidavit are two pronged. The first is a mix between separation of powers, sanctity of marriage and compelling state interest. Second is the countering of the progressive interpretation of Navtej Singh Johar and Puttuswamy judgements to state that there is no fundamental right to marriage that can be claimed, under Part III of the Constitution.
Sanctity of Marriage, Legislative Competence & Intent, and Compelling State Interest.
The affidavit states that religious notions or codified personal laws of the country govern the institution of marriage, and the population only regards a biological man and woman as participants of marriage. According to the affidavit, since this is a question of which social relationships should be recognised (or not)—essentially a matter for the society and people to decide—the legislature should be the one to decide whether same sex marriages should be recognised or not. This is the first line of defence.
The second part is that, if same-sex marriages are recognised, associated laws such as adoption, divorce, domestic violence and penal laws would come into play and these were not enacted keeping this development in mind. The affidavit argues that this would lead to recognition of marriage without any associated laws having the required framework to accommodate this new development. Therefore, the recognition of same-sex marriages, the affidavit argues, be left to the legislature.
The third point of the affidavit is an interesting one. It connects the continuance of the institution of state to the institution of marriage. It states as follows:
“It is submitted statutory recognition of marriage limited to marriage/union/relation as being heterosexual in nature, is the norm throughout history and are foundational to both the existence and continuance of the State.”
The affidavit states that heterosexual nature of marriage is foundational to the state and does not essentially go into any details substantiating the claims of this connection.
Decriminalisation of Homosexuality is not equal to the right to marriage.
The second prong of the affidavit goes on to negate the existence of a right to marry under Part III of the constitution for the LGBTQ community. The affidavit states that the separate treatment given to heterosexuals is a reasonable classification since it has a rational nexus with the object of ensuring social stability via recognition of marriages and therefore, Article 14 is not violated.
With respect to Article 15, 19 and 21- the affidavit relies on case laws or interprets landmark judgements in the narrowest possible manner to negate the claim of right to marriage. The affidavit argues that the discrimination marker under Article 15 (1) cannot be adjudged for the issue of sexual relations between same sex couples since, even heterosexual, live in couples are not (in law) given the same status as married couples. The presumption of marriage in live-in relationships is rebuttable as held in Badri Prasad vs. Director of Consultation.
On Article 19, the affidavit argues that while Article 19 gives a person the right to form associations, there is no “concomitant right” that such association must necessarily be granted legal recognition by the state. Further it argues that right to a same-sex marriage cannot be claimed under Article 21, since the judgement in Navtej Singh Johar case only extends to the private sphere of individuals and not to a “public institution such as marriage”.
II. A pattern of opposition to progressive change.
Marriage- The touch-me-not institution
Family and marriage, and in general, the sphere of personal laws have always been relatively hard to amend, from the state’s perspective. Why is there a need to understand the history of how the institution of marriage has undergone changes? It is important to establish a pattern as to how almost all progressive changes with respect to personal laws, have been resisted by a conservative section, in one or the other way.
For example, Divorce is an alien concept to Hindu law, and to date, the family law regime in the country works to preserve the institution of marriage by enabling counselling to the spouses who want to get a divorce. Moreover, a different scholarship also argues that divorce or some sort of separation existed in different cultures in pre-colonial India, and therefore, it cannot be said that Divorce was completely unknown to India until the 20th century.
Irrespective of this, it is well known that the Hindu Marriage Act, 1955 faced stiff opposition from the conservative section of the country, when it incorporated provisions for Divorce. It is important to note that several women’s organisations were working on incorporating divorce provisions in marriage laws from the 1930s.[2] The compromises of the Hindu Marriage Act, 1955 are very interesting to note especially because of how radical it was to have provisions for Divorce in a country newly formed with powerful lobbies against these provisions. The act was still pushed, even with poor implementation and little to no change in women’s status in the immediate aftermath of passage of the act. Some members of the Rajya Sabha did point out the limitations of the Hindu Marriage Bill in empowering women to the fullest extent but supported it for being a progressive legislation nevertheless. The CPI member from Madras- Pravathi Krishnan said the following, while expressing her opinion on the bill:[3]
While we, as a party, support this Bill, we must make it absolutely clear that we do not feel that it is going to solve the problem finally. We welcome it because we know that it is a very essential measure in our country; we welcome it because, insofar as it goes, this piece-meal measure guarantees and bestows certain benefits, particularly on women. On the one hand we find that it restricts polygamy and bigamy which have been the bane of the women of our country for innumerable years, and. On the other hand, it creates the right of divorce. Although we do not either advocate or accept that people will queue up outside divorce courts, at the same time we feel that in any civilised country it is necessary that such a right should exist for those few people who find it impossible to live together as husband and wife. In supporting this right, we support it from the angle that it is an essential right of the individual to be able to live a life of happiness and a life free from all worry; we also maintain that in such cases where reconciliation is absolutely impossible, to safeguard the interests of the children, to prevent children being born and brought up in an atmosphere of un-happiness, an atmosphere of petty strife, an atmosphere of constant friction between father and mother, it is very necessary that this right should be bestowed and should be guaranteed to our people.
This view by Parvathi Krishnan was a minority one, with most of the conservatives and a good section of other parliamentarians not liking the provisions for divorce finding place in the bill.
Even though Divorce is still frowned upon by society, it is an important part of the family law regime, giving the right of separation for the spouses. Another example is the Supreme Court’s ruling that instant triple talaq is unconstitutional where an old custom which was being used to violate rights of people, within their marriage, was declared unconstitutional in the case of Shayara Bano vs Union Of India And Ors. [4]
If we go a little further into history, when the Age of Consent Act, 1891 was enacted, there was widespread agitation against it. The British passed the Age of Consent Act, 1891 which mandated that a girl child must be at least 12 years old for them to get married, and it applied to all religions. The act was passed because of a campaign by a Parsi Social Reformer- Behramji Malabari from Bombay. Justice Ranade and some other reformists did support this development but influential leaders like Bal Gangadhar Tilak decried that the act was being passed without listening to people.[5] Much earlier, when Widow Remarriage was being campaigned, anger of conservatives was inescapable. One criticism against the pre-colonial changes in personal laws is that those were British attempts to break the family system. However, the British tried to not interfere into the complex family system of India, as much as possible since it would be counter productive to its economic interests. However, the campaigns of Indian Social Reformers, whom we hail today as heroes, was a main driving factor in having the British enact whichever legislations they did in the sphere of family law.
These examples show a pattern where any change to the family system, of any religion has attracted some or the other opposition. Moreover, even though the Hindu law or in general in the Indian Culture, marriage is seen as a lifelong commitment, without any end to it, and even beyond lives —the laws have allowed divorce, recognising and realising the change the institution has to undergo to suit the sensibilities of the population. This means that the notion of marriage being only and only a holy union and nothing else is not entirely correct. And this also shows that changes in the institution of marriage are not some threats to the state as the state is showing it to be, to claim the defence of compelling state interest.
The institution of marriage should be viewed as a social institution, rather than a religious one, whether it be Islamic, Hindu or otherwise. If marriage is viewed as an institution with social characteristics, along with hints of religion, then it is only natural that the social characteristics of the institution change over time.
III. Missing by Miles – Narrow understanding of Navtej Singh Johar
A. The Judgement
The Supreme Court judgement in Navtej Singh Johar is also based on the court’s ruling in Justice KS Puttuswamy in which right to privacy was recognised as a fundamental right.
There are two relevant discussions from the judgement, for the topic related to same sex marriages. One is the discussion on Constitutional Morality-Progressive Realisation of Rights, and second is the emphasis on Dignity, throughout the judgement.
Constitutional Morality- Progressive Realisation of Rights
Constitutional Morality-according to the judgement is different from the societal or majoritarian morality. This means that the values and goals imbibed in the constitution have a separate path within which they are to be realised- whether it be pluralism, equality or justice. The morality such path requires and emits, is Constitutional Morality. The court stated as follows, talking about Constitutional Morality:
…. Rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism.
This means that the morality within which law has to operate or within which the citizens have to conduct themselves is not societal or majoritarian morality but constitutional morality. Progressive Realisation of Rights means that the rights provided in the constitutional scheme should evolve to suit ever changing values within society and to that extent, the Constitution is and should be a living document.
Essentially, the Supreme Court held that the contours of constitutional morality should be drawn with the help of a progressive realisation of rights.
Dignity
One of the most recurring and highly emphasised concepts in the judgement, in all opinions, is the concept of Dignity and how it is inalienable to the rights of individuals. The court stated that the changing nature of the Constitution means that it recognises the dignity of individuals and the fostering in all spheres including socially. The court stated as follows:
Dignity is an inseparable facet of every individual that invites reciprocative respect from others to every aspect of an individual which he/she perceives as an essential attribute of his/her individuality, be it an orientation or an optional expression of choice.
The court stated as follows on how the law should be, with respect to the constitutional ethos and values:
The law provides legitimacy for social institutions. In a democratic framework governed by the rule of law, the law must be consistent with the constitutional values of liberty, dignity and autonomy.
B. Affidavit’s inconsistencies vis-à-vis Navtej Singh Johar
The affidavit took the stance of restricting the rich jurisprudence of Navtej Singh’s case to just decriminalisation of Section 377. The affidavit stated as follows:
After the decision in Navtej Singh Johar (supra) the only change is that persons of the same sex can engage in consensual sexual intercourse without being held criminally liable under Section 377 of the Indian Penal Code. This, and no more than this, is what has been held in that case.
The judgement read the right to privacy, expression of sexual orientation into Article 21 and 19, and as a result, found the restriction of the homosexuality unconstitutional. Now, when sexual orientation and expression of it forms part of the fundamental right— the ways in which such sexual orientation manifests itself also should have legitimacy. This means that people who are expressing their love for each other, in the form of a commitment to live with each other, should be allowed to do so, only because their sexual orientation is different. And no amount of discrimination shall be practiced by the state against those who are expressing their sexual orientation and choice.
Discrimination based on Article 15.
Article 15 of the constitution states as follows:
5. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
(a) access to shops, public restaurants, hotels and palaces of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
The affidavit states that there is no discrimination based on sex whereas it has already been established by the Supreme Court in the case of NALSA vs Union of India that discrimination based on gender identity is also discrimination on the basis of Article 15. This also has been reiterated as the correct view by Justice D.Y. Chandrachud (Now Chief Justice) in the case of Navtej Singh Johar case.[6]
The affidavit states that the current status quo of not recognising same sex marriage is not violative of Article 15. It tries to substantiate this argument by trying to equate same sex couples with heterosexual couples in a live-in relationship and therefore, the basis for different treatment is not sex.
The affidavit fails to recognise the fact that there is a possibility that heterosexual live-in has the possibility to be recognised as a marriage without there being a traditional marriage in some cases. There is no such possibility for same sex companionship or relationships and there exists the discrimination against LGBTQ people.
A large part of the union of India’s affidavit rests itself on narrow interpretation and selective quoting of very progressive judgements. However, one leg of the argument of the union that states that associated legislations are not well equipped to deal with same sex marriages is of some significance. It is yet to be seen if the Supreme Court will go on to recognise the right and let the government legislate to incorporate the right.
[2] Sinha, C., 2012. Debating patriarchy: The Hindu code bill controversy in India (1941–1956), pp. 211.
[3] Parvathi Krishnan, Rajya Sabha Debate, 7th December 1954, Available at https://rsdebate.nic.in/handle/123456789/583713?viewItem=browse
[4] (2017) 9 SCC 1
[5] Kosambi, M., 1991. Girl-brides and socio-legal change: age of consent bill (1891) controversy. Economic and Political Weekly, pp.1857-1868.
[6] AIR 2014 SC 1863
Related:
Same sex marriage is not an elitist concern: Akkai Padmashali