Section 377 of Indian penal code 1860, then criminalizes the intercourse that was against the order of nature. In Meharban Nowshirwan Irani vs Emperor[1], court discussed that the state used these provisions to rip off the individual’s rights and autonomy in engaging in sexual activity with the same sex. This concept and problem are discussed in various other judgments. In Naz foundation Vs Government of National capital territory Delhi,[2] the court held that section 377 of IPC is to exclude sexual activity consensually done by homosexual adults. When this case went to appeal in Suresh Kumar Koushal vs Naz foundation[3] court reversed this judgment. The three judge bench held that the Order of nature referred is not constant and it depends on the social morality. The National legal services authority Vs Union of India[4] and Justice KS Puttaswamy vs Union of India[5] (protecting sexual orientation as part of privacy) highlights the role of central and state government is protecting the rights of these individuals.
The Supreme Court of India finally in Navtej singh Johar vs. Union of India[6] held that section 377 IPC is unconstitutional to that extent that criminalises the consensual activities of LGBTQ community. This judgment held that section 377 violated the article 14 of the constitution, as the section discriminated heterosexual and non-heterosexual persons. The categorization based on intrinsic and core traits of persons is not an intelligible differentia and hence violates article 14[7] as it depends on sexual orientation. The court also held that section 377 also violates article 15[8] as it discriminate a person based on sex of the individual and also violates article 19(1)(a) as right to sexual privacy is considered to be part of freedom as fundamental right.
Social norms which are deep rooted in the society did not change in a stroke when India got independence and this even did not got changed by the decision of Supreme Court in Navtej Singh case. For a country like India it’s difficult for such change to get into society as it is much tough for people to accept these changes as fast as they were decided by the legislature or the judiciary.
According to National Human rights commission’s study 75% of transgender in National capital territory and 85% in Uttar Pradesh dropped out of school before 10th grade. And their own family members are no exception from treating them with violence and oppression. This community is discriminated in renting houses[9], in recognizing rights, in protecting from crimes, in following court orders etc.
In spite its recognition by judiciary that the sexual orientation in same sex couples is innate and core trait and is discriminatory as per article 14 and 15 of the Indian constitution, the queer community still face problems which are social, economic and political. “A woman who eloped with another woman was beaten, stripped and paraded around the village within a blackened face and a garland of shoes around her neck”[10]. Lack of accommodation is another problem these communities face. Even in the public places where the services are provided by the state, like in washrooms, ticket counters, queues etc., contributing to the discrimination, which impact their functioning in this society.
In NALSA judgment the court held that these people are not be forced, to be any of the binary genders but are to be recognized as Third gender and placed onus on the central and state government to create awareness and remove stigma. Parliament enacted Transgender Persons (Protection of Rights) Act 2019[11] but this discrimination remained in the society.
SUBMISSIONS FROM PETITIONERS
As every individual has the right to dignity, equality and privacy as human rights and this individual includes LGBTQ A+ as well. They also have a right to choose the person of their choice to be their life partner. Article 19 and 21 of the constitution also refer to these rights as fundamental rights. The special marriage act is also violating these rights as per article 14 of the constitution. The act also violates the right to decisional autonomy and dignity under article 21(Right to marry is part of right to family under article 21). Thus this act is discriminating individual on basis of sex and violates article 15.
Special marriage act is not recognizing the same sex and gender non-confirming couples union causing prejudice to these individuals and also affect their rights and dignity. The act is also not classifying with fair and reasonable criteria in making its provisions applicable by excluding the LGBTQ couples from institution of marriage (no intelligible differentia). They also submitted that if a statute is not in accordance with the constitution it must be amended in order to keep in line or has to declare it unconstitutional.
They also argued that marriage is not just a privilege or benefit rather it is the ability to fully participate in society. It was also submitted that there is “no legitimate state interest” in excluding these couples from right to marriage. Denial of right to marriage is infringing individual’s rights and also their privacy and intimacy. So, they submitted that these statutes must be read to be gender neutral like the use of husband and wife are to be read as gender neutral word of spouse as is mentioned in section 4(1)(a), “any two persons” includes any individuals.
Transgender may fall in any gender whether men or women depending on what they identify with. ‘Men’ in Section 2 (b) must include any person, same with women. Section 4 is only discussing about the age limitation as twenty one years and not sex thus should be read so. Court may give guidelines based on which a legislative can be made by legislature. Not recognizing the civil unions of these individuals will send a negative message to the community making their unions inferior to other individuals unions. Court must provide with the guidelines to protect the LGBTQ+ communities from any kind of violence in making their unions work.[12]
It was also submitted that as all persons have fundamental right to choose their partner and being international signatory for convention and declarations like Universal Declaration on Human rights and Covenant for economic, social and cultural Rights along with state policies and welfare schemes India had great responsibility in protecting the rights of these individuals.
If the statutes only refer to the cisgender individuals like male or female then the then there can be some problem with implementation like the transfer of property under Hindu succession act by inheritance if the only heir left was a transgender. Similarly with the Foreign Marriage act. It was argued that the same sex marriages were also part of Indian culture and tradition including the gender non confirming couples as well. The constitutional courts have a responsibility to protect the rights so given by the constitutions and need not wait for the legislature to specially make a law for it. Also highlighted the point of judicial review by courts and that these actions by courts are not legislations.
ARGUMENTS OF UNION OF INDIA
Marriage is understood as a relation between heterosexuals as procreation is an essential part of marriage. Special marriage act is for heterosexuals and not including non-heterosexual cannot render it void and unconstitutional law. Reading section 4 for neutral genders as well will make it difficult to implement the other sections such as from 19 to 21A of the act. For instance section 21A enables Hindu succession act between male and female and now reading it gender neutral will make it difficult for its implement. And Socio-legal status of marriage can be decided only by the statues made by the parliament same with non-heterosexual couples. One cannot ask courts to make guideless[13] referring to Vishaka as there is no legislative Lacuna in the present case and non-inclusion of all kinds of unions in the act is not unconstitutional
Court must not affect the separation of powers and make laws. It was argued by Mr.Tushar Mehta that the right to marry does not come under article 19 of the constitution. And State has power to regulate the issues of marriage through law as per seventh schedule entry 5 of list III of constitution. These courts however gave the LGBTQA+ community free to choose their partners in Navtej Singh Johar judgment but that oblige the parliament to recognise these unions legally. This issue is of a legitimate state interest and thus state need to protect the interest of children brought up by such couples.
As per them the special marriage act is not unconstitutional because it was clearly made to include in act only the heterosexual unions. The object of the act is to protect the rights of those individuals or unions only. The act does not violate article 14 as the classification of heterosexual and non-heterosexual is done on intelligible differentia, thus constitutional. The view of the petitioners that the division between heterosexual and non-heterosexual couples is unconstitutional is hence wrong. Under-inclusion cannot be a ground for challenging its constitutionality. And the court cannot take linear reductionist perspective in this issue.
It was also argued that right to marry cannot be traced to right to privacy as it is a social institution. And this right of privacy can only be interfered with, when the state interest is involved. Public engagement is essential for any change in societal norms and laws like this. Like in Mexico City, it recognized the rights to marry, before which the recognition to the unions was granted.
The special marriage act is not violating article 14 and 15 of Indian constitution and cannot treat hetero and non hetero sexual unions as same. As the word spouse in a marriage union must refer anyone of heterosexual union only. Besides all that a court can only fill the vacuum of legislature and cannot create a new law which would become a judicial legislation and courts cannot direct the legislature when and what to legislate. It was also submitted that according to chapter II of Juvenile Justice act[14] lays down general principles of care and protection for children, in connection with the article 21 of constitution: rights of child to have best upbringing.
It was also submitted that Decriminalisation of sexual offences as in Navtej Singh case does not give it recognition. In this case court only held the unions are not void but not about marriages and their recognition is not granted. It was submitted that as per section 112 of Indian evidence act, there is a presumption of child being legitimate if born after two hundred and eighty five days of separation, which highlights that procreation is an important part of marriage. Ex-serviceman Advocates welfare association an intervener also submitted that such recognition cannot be given to army, navy and air forces as that would create problem about shared facilities.
ANALYSIS
Under article 32 of Indian constitution[15], the court is vested with the power to take this case to provide for remedy and also the state cannot make law which contravenes the fundamental rights contained in part III of the constitution as per article 13. Article 32 makes fundamental rights enforceable and justiciable in nature and Court under this article can give orders, directions or writs. No organ shall perform the work or essential function of other organ, which is also termed as pure doctrine. This forms the part of basic doctrine.
It was held in State of W.B. v. Committee for Protection of Democratic Rights[16], judicial review cannot be barred by citing the doctrine of separation of powers. In fact judicial review promotes separation of powers. As held in State of madras Vs GV Row[17] judicial review is imbibed in constitutional provisions and upheld in article 32. But the power of this court is different from the power of the legislature to make laws which is beyond judicial review.
Queerness is a natural phenomenon which is known since ancient times. It is not elite or urban, it’s a natural phenomenon. It was also held in Navtej Singh Johar case that it is innate and natural. May be because people in the cities believed to be more liberal so it is said so that they are mostly urban that are queer. And coming to the concept of marriage, it is as per law in India is between a men and women who are above 18 of age. It is believed marriage is for procreation however this concept of marriage is not static.
Special marriage act is enacted in 1954 for legalising marriages between two persons, this helped for inter caste, interfaith and inter religious persons and to reduce honour killings and false cases. Institution of marriage is made up as per societies, communities and individuals. However this court held that the relationship in nature of the marriage is different from marriage.
CONCLUSION
The court after taking submissions from both sides opined that Court has power to decide on this matter. Also held that Legislative is that organ which has the capacity and functionality to make law on any subject or to deal with; It is any kind of recognition that these communities are asking also to be granted by the legislative through law. There is right to marry for every individual but that has to be recognised and provided by the statute as per the customs or any such law. And any entitlement like conferring legal status to any unions or marriages up on parties can be done by law made by parliament only, courts cannot make such laws.
As granted by previous judgements of this court all those rights of LGBTQA+ and queer groups are protected and given including right of form unions, under article 21 like right to privacy, right to choice or autonomy etc., but not a right to claim entitlement to any legal status. It is also not sustainable to read various provisions of various acts as per the rights of these individuals like referring to provisions of SMA to refer them in gender neutral manner. And challenging SMA on that ground of under-classification is not made out by the petitioners. Besides this right to marriage is a fundamental right under the constitution in accordance with laws of the territory.
NEPAL became first south Asian country to officially recognize same sex marriage and that’s a great step towards recognition and freedom for individuals. However in this judgment of five Judge bench “Supriyo@ Supriya chakraborty vs. Union of India[18]”, with 3:2 majority ruled against giving constitutional validity to the same sex marriage. The judgment pronounced on October 19 2023, SC explained that it did not take away the equal right to freedom and enter into a union of same sex couples but did not give legal protection or recognition under any Indian law to those couples or unions. This ruling also highlights the concept of separation of powers and emphasized that changes cannot be made to the Special marriage act by SC and it’s the work of legislature and executive.
[1] Meharban Nowshirwan Irani vs Emperor, AIR 1934 Sind. 206.
[2] Naz foundation Vs Government of National capital territory Delhi WP(C) No.7455/2001 2nd July, 2009.
[3] Suresh Kumar Koushal vs Naz foundation, CIVIL APPEAL NO.10972 of 2013.
[4] National Legal Services Authority v. Union of India (2014) 5 SCC 438
[5] K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 [9-Judge Bench].
[6] Navtej Singh Johar v. Union of India (2018) 10 SCC 1
[7] Constitution of India, Article 14 1950.
[8] Constitution of India, Article 15 1950.
[9] Sejal Singh and Laura E. Durso, ‘Widespread discrimination continues to shape LGBT people’s lifes in both subtle and significant ways’ (American Progress , 2 May 2017) https://www.americanprogress.org/article/widespread-discrimination-continues-shape-lgbt-peoples-lives-subtlesignificant-ways/.
[10] Maya Sharma, Loving Women: Being Lesbian in Underprivileged India (2nd edn, Yoda Press 2021).
[11] Transgender Rights act.
[12] As issued in Vishaka Vs state of Rajasthan 1997 6 SCC 241.
[13] Article 141, Supreme Court decisions are binding on the lower courts, thus the guidelines here.
[14] Juvenile Justice(Care and protection) Act 2015.
[15] Article 32: Remedies for the enforcement of rights conferred by this Part. (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2)The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
[16] State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571.
[17] State of madras Vs GV Row (1952) 1 SCC 410
[18] Supriyo @ Supriya Chakraborty & Anr Vs Uion of India Writ Petition (Civil) No. 1011 of 2022
Author: Sri Roshini Nakka
Juris Centre 