The Supreme Court of India recently constituted a five-judge bench to hear 18 petitions on legalising same-sex marriage in India. The case has captured the public imagination with strong support and opposition to the petition itself. The hearings have concluded in the Supreme Court and the judgement is now awaited. This piece explicates the legal position of the institution of marriage and where, in the existing legal framework, the petitioners find the scope for incorporating same-sex marriage.
Marriage enjoys social recognition but also a legal sanction. The unique structure of the Indian Legal system is the lack of coherence as to how the Indian legal system understands the institution of marriage. Keeping in mind the precept of secularism, various personal laws were codified and structured to give recognition to existing social practices. This resulted in a heterogeneous understanding and engagement of the legal system with the institution of marriage.
While both the Hindu personal law and the Christian personal law view marriage as a sacred union between legally permissible adults, the Muslim personal law understands marriage from the position of contract. How do the two understandings differ? Marriage as a contract becomes an agreement between two willing parties. Globally, contractual marriages recognise the varied and differing positions of the two parties individually. This recognition translates in first the possibility of collective and personal assets and formalises protections for both the parties of the marriage contract at the time of dissolution/divorce.
On the other hand, marriage as a union engages with the willing parties as a single unit. This formulation of the institution benefits the policy framework by instituting the continuation of lineage and property and aiding as the focal point for the state to engage with child care, nutrition etc. Personal laws further complicate this understanding within India. Here the union then takes upon itself the burden of religious sanction through the rituals and practices which constitute a marriage. Then this marital union takes the shape of a sacrament.
Cabinet Minister of Law and Justice, KirenRijiju, spoke to the importance of marriage as a union for the policy system itself. While speaking about the pending decision and cases in the Supreme Court he states, “The government is not interfering with the personal life or activities of an individual. Personal freedom or personal activities of citizens are never questioned or disturbed or regulated by the government. However, when the issue concerns the institution of marriage, it is a policy matter that needs serious discussion”, quoted by ANI.
Here the government seems to be creating a qualificatory distinction between marriage and what constitutes ‘personal’ for an individual. The government seems to be interested in conversing with the institution of marriage from the singular lens of policy impact and fails to recognise that the act of marriage and the choice of partner continue to be personal and integral acts for any human being. This position of marriage is a fundamental personal liberty is recognised as a constitutional guarantee within the ambit of Article 21 (LakshmibaiChandaragi B. V State of Karnataka, 2021).
The legislative wing of the state has time and again intervened in this personal liberty to influence both the practice and the institution of marriage itself. These transformations began with the Age of Consent controversy in 1891. The bill introduced by the British paved the way for a legal history where the Indian State used the method of legal sanctions to correct social practices associated with the institution of marriage.
These sanctions have been motivated by a unifying thread of gender equality. Be it the myriad of laws composing the Hindu Code Bill in the 1950s, The Protection of Child Marriage Act of 2006 and the recent Bill on Prohibition of Child Marriage tabled in the Indian Parliament. The Indian Legislature has had a history of using legal methods and tools to correct ‘gender’ justice. These policy formulations have attempted to tackle concerns of domestic violence, age of marriage, rights to property, and rights of dissolution. Though motivated and aimed towards gender equality they always have not had the intended results.
The same case cannot be made for the Indian Judiciary. While the engagement of the judiciary with the institution of marriage is more continuous and sustained, the judgments have oscillated in their positions.
The judiciary has fought patriarchal legal provisions within the law itself by overturning various lower court judgements on the restitution of conjugal rights (Sushil Kumar Dang V Prem Kumar, 1976). At the same time, the judiciary has not given adoptive rights (Sitabai V Ramachandra, 2020) and given weightage to the sanctity of marriage through personal laws furthering the political stand that the ‘Union must and should not interfere in the home’(Harvinder Kaur V Harmander Singh, 1983).
Today, the idea of what constitutes gender justice has expanded; the conversation has moved from two poles to the idea of a spectrum. With this expanding understanding of gender, which has now been recognised by the Indian State through judicial intervention, all previous legislative and judicial interventions within the institution of marriage become precedence towards sanctioning same-sex marriage itself. The very unilateral conversation that the government is raising in opposition to the petitions, provides fertile ground for recognising same-sex marriage.
The Special Marriage Act of 1954 was another legislative intervention aimed at correcting many inequalities within existing religious and personal laws. It was a strategy employed by the Indian political system to correct glaring difficulties in accessing inter-caste and inter-religious marriages within the Indian social structure. It takes over the sanctioning authority from religion to law by the provision of the Institution of Marriage through state geared registration. The act of registration of marriage gives it the position of a civil contract within the law.
The 18 petitions in the court seek recognition of same-sex marriage within the Special Marriage Act of 1954. Given that the aim of the law in itself was to ensure accessibility and liberty in the choice of marriage beyond religious sanctions. The petitioners are well within their constitutional and legal purview to seek a missed recognition within the law. As discussed, this constitutional liberty cannot be abridged.
Contrary to the opposition to the petition, the civil contract under SMA, 1954 does not necessarily take away the possibility to continue to engage with the institution of marriage for policy measures. It does make the movement within and away from the institution of marriage itself relatively easier. Simply because the civil contract of marriage recognises that agency, at the end of the day, lies within the hands of the two parties themselves. This agency then becomes the second tenant of the Special Marriage Act. The petitions seem to be asking why this agency is restricted to archaic notions of gender and sexuality.
Furthermore, the Special Marriage Act 1954 employs a gender-neutral language of person/people. This employed gender-neutral language coupled with the very aim of the Act has created fruitful conditions for the demand to expand the understanding of marriage beyond ‘the bride’ and ‘the groom’ within Indian political and legal systems. Though the petitioners have to continue to point to the difference between the right to love and the liberty to marry. Given that the legal and political framework in India has gone on to recognise that the social practice of marriage is no longer sine-qua-non to sexual intercourse. The recent bill introduced in the Parliament on Prevention of Child Marriage Bill, 2021 recognises the age of consent to be 18. Judicial proceedings have gone on to give couples living in long-term cohabitation akin to a marriage similar rights as spouses. These protections and securities are not guaranteed but have gone on to recognise the changing nature of social relationships. Though these recognitions continue to be heteronormative simply because the sanction of marriage continues to be heteronormative.
The Indian judiciary has transformed the legal, political and policy framework to expand their understanding of gender from the male-female polarity. The commitment to this task has been long due. Through a slew of recent judgements, the idea of the citizen now recognises the third gender, privacy has been given sacrosanct importance and as late as 2018, the SC decriminalised homosexual sex. Yet the conversation has remained to give access to complete freedom within the privacy of homes.
What is unique to the current case is that the demand for ‘same-sex marriage’ not only accepts the right to love but also recognises and formalises that the idea of love, marriage and sex is no longer heteronormative within India. Keeping the emotional and sociocultural elements of the choice of marriage and partner, expanding access to marriage as an institution would not merely accept various gender and sexualities, it would recognise their presence.
(Sakshi Sharda is a Research Associate at Social Policy Research Foundation (SPRF) and an Editorial Consultant with Taylor and Francis, India. She has completed her MPhil from the Centre for Political Studies; SPRF is a think tank of young research professionalsthat seeks to intervene in matters of public policy)