• A recent statement by a Member of Parliament that same-sex marriages are against the (so-called) cultural ethos of India has once again stirred up the debate on marriage equality.
  • 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.
  • The most obvious hurdle in adjudication seems to be the legitimacy of the institution — i.e., 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’. The question then is: how difficult is the present challenge to (no) marriage rights.
  • 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.
  • In the latter, equal treatment of same-sex couples with those of heterosexual couples was considered paramount.
  • As argued by lawyer Jonathan Berger, this makes a difference because while a privacy analysis calls for a complete ‘hands-off’ approach from the state where it should not interfere, an equality analysis requires the state to take positive steps to ensure equal treatment in all spheres of life.
  • Thus, once equal treatment with heterosexual persons is established, it ought to become simpler to seek sequential rights of equalising age of consent, prohibiting employment discrimination, rights in marriage, adoption etc..

Comparative law

  • 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.
  • This restriction cast on the most intimate part of personal life could not be justified by any pressing social need. The court thus adopted a privacy approach and did not go into the question of equal treatment under Article 14.
  • It could be argued that this made it difficult for a same sex couple, in Oliari vs Italy, to seek marriage rights in Italy. Here, the court reasoned that states could not be obligated to grant marriage equality, provided there was some form of legal recognition of their rights.
  • Moreover, that many European countries had not yet granted marriage rights and only recognised civil partnerships shaped the court’s decision.
  • On the contrary, 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 latter was enabling and granted greater protection to homosexual persons.
  • Thus, 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.
  • Exclusion to marry was considered antithetical to equality and dignity and permitting it would have meant that marriage of a homosexual couple was inferior or of lesser worth. This was constitutionally impermissible.
  • 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.

A decriminalisation

  • Though belated, India adopted the South African approach in Navtej Singh (2018). 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.
  • 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).
  • 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.
  • The foundation of equal treatment thus ought to pave the way for marriage equality in India and not be left to the vagaries of the legislature.
  • This 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.
  • 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.


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