About the Author
Ananditha S R is a 2nd year student pursuing BA LLB at Government Law College, Thiruvanathapuram.
Introduction
Violence and oppression hover around the transgender community. People view queer relationships as a taboo or something which does not fit into the so-called ‘normal’ behavior. They face a sense of ‘non-belonging’ in the society.
The advent of the British who brought with them their morality and laws changed the native way of life. They introduced many laws which were prejudicial to queer relationships. One such example is Section 377 which criminalized queer sexual acts. These laws paved the way for society to stigmatize such communities and therefore people with atypical gender identities were forced to conceal their sexual orientation from the world. It is not queerness that is of foreign origin but that many shades of prejudice in India are remnants of a colonial past. The increase in the expression of queer identities in recent times does not mean that ‘queerness’ is new or modern. Rather, this increase in the expression is because of the rise of democratic Nation states which enabled queer persons to exercise their inherent rights, life liberty, and equality across the world.
The honorable Supreme Court in Navtej Singh Johar 1 case recognized Queerness as ‘innate and natural’ and queer love has flourished in India since ancient times.
Indian mythology reveals that love was celebrated and accepted in all its forms. Valmiki’s Ramayana narrates to us the sight of two Rakshasa women kissing each other that Lord Hanuman saw while he was returning from Lanka. Krittivasa Ramayana tells the tale of King Bhagiratha, who was born of two women. The story of the brave Shikhandi, born as the daughter of King Drupada but raised as a man, who killed Bhishma in the battlefield of Kurukshetra is depicted in the great Epic Mahabharata. The Rig Veda refers to the same-sex couple Mitra – Varun, who are believed to be the representatives of the two halves of the moon. Kamasutra recognises eight types of marriages. Among them, the ‘Gandharva vivah ’ relates to gay marriages or lesbian marriages. There are some other Hindu literature like Manusmitri, and Narada Purana which disapprove such relationships, yet they prove the presence of homosexuality in Ancient India 2.
The Same-sex marriage verdict (Supriyo a.k.a Supriya Chakraborty & Abhay Dang v. Union of India thr. (2023))
In the verdict running into 366 pages, the 5-judge Constitution Bench of Dr. DY Chandrachud, CJI and Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, PS Narasimha, JJ wrote 4 opinions on the Same-Sex Marriage matter where they agreed on some points and disagreed on others. The bench unanimously agreed that there is no fundamental right to marry and that the Supreme Court is not entitled to read words into the Special Marriage Act and make it a gender-neutral legislation. There were disagreements on points regarding Non-Heterosexual Couples’ Right to Enter into a Union, and the right of unmarried couples (including queer couples) to jointly adopt a child, where Just. Bhat, Just. Kohli and Just. Narasimha, formed the majority, and CJI Chandrachud, and Just. Kaul was in dissent.
Chief Justice D Y Chandrchud on the rights of the LGBTQ+ community
Understanding the institution of marriage
The court disagreed with the contention that the very conception of marriage does not permit queer individuals’ marriage put forward by the respondents. The court held that there is no universal conception of marriage. “Each religion, each community, each couple defines the institution of marriage for itself.” For instance, the Hindu Marriage Act views marriage as a ‘sacrament’ while the Muslim Marriage Act deems it to be a ‘contract’. The Queer community is just as much as any other community, though not recognised by the prevailing laws governing marriage.
CJI, while referring to many transformations that the institution of marriage had undergone, held that the concept of marriage is not ‘static’. The abolition of the then so-called pious practice of Sati, the introduction of the Hindu Widows’ Remarriage Act 1856 which permitted widows to remarry who were earlier required to lead a life of ‘living death’, the abolition of child marriage and the practice giving dowry, the introduction of Special Marriage Act which enable inter-caste and inter-religion marriages and many more. Such practices were once viewed as an inevitable part of the institution of marriage. When B R Ambedkar introduced the provision of divorce, it was opposed on the ground that marriage in the Hindu religion did not envisage divorce because it was a sacrament. When the legislation brought about such revolutions, they were in the beginning met with fierce opposition on the grounds of the cultural values of the country. Those beliefs and practices once considered pious and inevitable are now frowned upon.
Justice Chandrahud held that “Fundamental rights are not contingent upon the approval of the community.” Homosexual union is decriminalized in the Navtej Singh Johar case but has not been given legal recognition. Denying legal recognition would exclude non-heterosexual unions from the express and implied benefits that flow from such recognition. “If the marriages of queer people were to be recognized by law enacted by Parliament, it would be the next step in its progression”.
Rights of Queer persons recognised by the Constitution
There is no Fundamental Right to marry
All 5 judges unanimously held that there is no fundamental right to marry.
Fundamental rights are characterized as positive rights and negative rights. Negative rights involve freedom from governmental action whereas positive rights place a duty on the state to provide an individual with benefits. It was held that if the Constitution guarantees a fundamental right to marry then a corresponding positive obligation is placed on the State to establish the institution of marriage if the legal regime does not provide it.
The court has recognized the right of an individual to choose his/her partner and the state cannot limit the freedom to choose a partner under Article 21 in Shafin Jahan and Shakti Vahini case. The SC has not till now considered the question of whether the constitution guarantees the ‘Right to marry’. The question of whether ‘Right to marry’ is a fundamental right was decided in this case for the first time. The court held that the Right to marry is not a fundamental right.
Even though the right to choose their partner or the values that a marital relationship entails can be interpreted to be included under Article 21, the Constitution does not expressly mention the right to marry as a fundamental right. There cannot be a per se assertion that there exists an unqualified right to marry which requires treatment as a fundamental freedom.”
The goal of self-development and what it means to be human
The constitution does not expressly mention the goal of self-development. However, such an understanding can be gleaned from the provisions of Part III and Part IV of the Constitution. Thus, one of the purposes of the rights framework is to enable the citizenry to attain the goal of self-development. The court, in this case, held that the capabilities of ‘emotions’ and ‘affiliations’ are vital for self-development and sustaining a quality life. Our ability to feel the emotion of love and affection for one another is a fundamental feature of our humanity. Self-development is achieved not solely through educational qualifications or financial capabilities. The person being a part of a family created with one’s life partner which is an important component of our humanity also plays a significant role in the self development of an individual. The exclusion of the importance of a family in one’s self-development is to forget what makes us human.
Presently, same-sex marriages are not recognized by the state. CJI was of the opinion that it is insufficient if the ability of persons to form a relationship is not backed by recognition of the State. The honorable CJI in this case thus held that “ the right to enter into a union includes the right to associate with a partner of one’s choice, according to recognition to theassociation, and ensuring that there is no denial of access to basic goods and services is crucial to achieving the goal of self-development.”
The rights under Article 19
The right to freedom of speech and expression and to form intimate associations.
“The freedom of speech and expression is not limited to expressive words. It also includes other forms of expression such as the manifestation of complex identities of persons through the expression of their sexual identity, choice of partner, and the expression of sexual desire to a consenting party.” Court held in the case of NALSA 3, the court held that the expression of gender identity is a form of protected expression under Article 19(1)(a). In Navtej Singh Johar’s case, Section 377 of IPC was decriminalized on the ground that it infringes upon the freedom of expression of queer persons protected under art 19(1)(a). Therefore, we can say that the right to form association guaranteed under Art 19(1)(c) is not restricted to mean only associations formed by workers or employees but also includes freedom to engage in other forms of association to realize all forms of expression protected under Art 19(1)(a).
Based on this analysis, the court in this case held that the “State could indirectly infringe upon freedom when it does not create sufficient space to exercise that freedom. A formal associational status or recognition of the association is necessary for the unrestricted exercise of the freedom to form intimate associations. For the right to have real meaning, the State must recognize a bouquet of entitlements which flow from an abiding relationship of this kind.”
At present the ‘Right to marry by a statute’ is confined only to heterosexual marriage. Queer couples are not conferred with this right. To remedy this, “during the hearing, the Solicitor General of India made a statement that a Committee chaired by the Cabinet Secretary will be constituted to set out the rights which will be available to queer couples in unions. The Committee shall set out the scope of the benefits which accrue to such couples.”
The right to settle in any part of India
The SC in Pradeep Jain v. UI 4 interpreted the term “settle down” in article 19(1)(e) as building one’s life there and residing there permanently. This means that citizens of India have the right to settle in any part of the territory of India in terms of Article 19(1)(e). Court recognized that for many people, building a life includes choosing their life partner. “Hence, the right to enter into a union is also grounded in Article 19(1)(e).”
Facets of the right to life and liberty under Article 21
The atypical family
The conception of the family when it comes to the case of Queer relationships may be atypical but its atypical nature does not detract from the fact that it is a family. In Deepak Singh case 5 , the court rightly acknowledged the existence of atypical families.
The right to health
The World Health Organization declares that mental health is a state of complete mental well-being and not merely the absence of mental illness. This idea is also seen in the Mental Healthcare Act. Freedom and liberty of choice is a crucial factor that secures the mental well-being of persons. Liberty of choices can be restrained either by expressly denying them or by failing to create adequate conditions for the exercise of such freedom. Section 18 of the Act guarantees access to mental health without discrimination on the basis of sex, gender, or sexual orientation which means that it is inclusive of the rights of the LGBTQ community. Article 21 read with section 18 of the Mental Health Act guarantees the right to enter into a long-lasting relationship with their partner. They also have a right not to be subjected to inhumane and cruel practices.
The right to freedom of conscience under Article 25
Article 25 deals with constitutional morality and not societal morality. This court in India Young Lawyers Association v. State of Kerala held that individual dignity cannot be allowed to subordinate to the morality of the mob.
“Morality must be determined on the basis of the preambular precepts of justice, liberty, equality, and fraternity. None of these principles are an impediment to queer persons entering into a union. ” Instead they emphasize the idea that queer persons have a right to union. Part III also upholds their rights.
On the analysis of the rights conferred by the constitution, Justice D Y Chandrachudheld that Queer persons have the right to union. He thus held:-
“Equality demands that queer persons are not discriminated against. Material and expressive entitlements which flow from a union must be available to couples in queer unions. Any form of discrimination has a disparate impact on queer couples who unlike heterosexual couples cannot marry under the current legal regime. As a consequence of the rights codified in Part III of the Constitution, CJI held that all persons have a right to enter into an abiding union with their life partner.” The restriction on the grounds of sexual orientation is also violative of Article 15.
The challenge to the Special Marriage Act
The petitioner contended that SMA is unconstitutional as it is under-inclusive of homosexual marriages. Therefore the petitioner requested the court to either strike down SMA as unconstitutional or substitute/ add phrases to include same-sex marriage in its ambit so as to save it from being declared void.
Here, the court held that if Section 4 of the Special Marriage Act is to be declared unconstitutional, the first approach it can choose is to strike down this section. Special Marriage Act was enacted to enable persons of different religions and castes to marry. If this is declared void, then it would take India into the pre-independence era where inter-caste and inter-religious marriage was considered taboo. It would result in social inequality and religious intolerance. This would lead to eradicating one form of discrimination at the cost of permitting another.
If the court takes the second approach of extensively reading in words into the SMA and other related laws like ISA, and HSA, to make it inclusive of same-sex marriage, it would in effect be entering into the realm of the Legislature. In effect, it would be redrafting the laws in the name of reading words into the provision which cannot be done due to its institutional limitations. This opinion was proposed unanimously by the bench.
In conclusion, the court held that it could neither strike down the SMA nor it read words into the SMA to include same-sex members within the ambit of the SMA 1954. Therefore, the SC held that it is for the Parliament and the state legislature to formulate laws regarding the same.
Transgender persons in heterosexual relationships can marry under existing law
It was unanimously held that Transgender Persons and Intersex Persons have the Right to Marry under existing laws including Personal Laws.
The gender of a person may not be the same as their sexuality. Court distinguished between these terms:-
- Sex – refers to the reproductive organs and structures that people are born with
- Gender identity – depends on their internal experience of gender, and their sexual orientation is defined by the gender of the people that they are attracted to.”
A transgender person is one whose gender identity does not conform to their sex. A transgender person may be heterosexual, homosexual, or of any other sexuality.
Laws governing the marriage including the personal laws and Special Marriage Act regulate marriage between a husband and a wife which is evident through the words used including ‘bride’ and ‘bride groom’; ‘man’ and ‘woman’.
The Supreme Court in this case held that if a transgender person is heterosexual and wishes to marry their partner whereby each of them satisfies the requirements, such a marriage is governed under the present marriage laws including the personal laws and SMA since laws governing marriage are framed in the context of a heterosexual relationship. This is because such a marriage of the heterosexual transgender would involve a wife or the bride and a husband or a bridegroom which makes it a heterosexual union.
The Court said that “In exercise of the rights to dignity, autonomy, privacy and health an individual (regardless of their gender identity) may choose to enter into a union with a person (who may be of the same sex as them). Once they enter into a relationship as life partners, a couple has the right and the freedom to determine the significance of that relationship as well as its consequences. A denial of this freedom would be a denial of the many facets of Article 21.”
The right of queer persons to adopt child
Challenge to the Adoption Regulations
Adoption regulations contradicts the Juvenile Justice Act
The adoption regulations contradict the Juvenile Justice Act.
The JJ Act Chapter VIII (Sections 56 to 73) deals with the provisions related to adoption. The Act prescribes eligibility criteria for prospective adoptive parents (means person/persons eligible to adopt a child) which includes the mental, physical financial well-being of parents, and consent of both parties. A single or divorced parent is eligible to adopt a child, provided the only restriction is that a single male cannot adopt a girl child. Section 5(3) of the adoption rules framed by the Central Adoption Resource Authority in the exercise of the powers conferred under Section 68(c) read with Section 2(3) of the JJ Act, indicates that while a person can in their individual capacity be a prospective adoptive parent, they cannot adopt a child together with their partner if they are not married. While the J J Act does not require the couple to be married, the adoption regulations require the couple to be married.
The Minority held the view that that delegated legislation (adoptive rules) must be consistent with the parent act and must not exceed the powers granted under the parent Act ( J J Act). “The provisions of the delegated legislation will be ultra vires if they are repugnant to the parent Act or exceed the authority which is granted by the parent Act.”
Regulation 5(3) of the Adoption Regulations violates Article 14 of the Constitution
Regulation 5(3) classified couples into married and unmarried for the purpose of adoption with the intention of finding a stable household. This means that CARA has proceeded under the assumption that only married couples would be able to provide a stable household for the child. The court reasoned that although married couples provide a stable environment, it is not a universal application. Similarly, the relationship of unmarried couples cannot be wholly categorized as unstable.
The Adoption regulation uses ‘marriage’ as a yardstick to classify couples. A classification is reasonable, when the following test is satisfied 6:
- The classification must be based on an intelligible differentia which distinguishes the persons or things that are grouped, from others left out of the group; and
- The differentia must have a rational nexus to the object sought to be achieved by the statute.
In this case, there is intelligible differentia as married couples can be easily distinguished from unmarried but lacks in rational nexus to object sought to be achieved. The object of CARA regulations is to ensure that the best interest of the child is protected. Placing a child in a stable family is undoubtedly in pursuance of a child’s interest. But there is no data to prove that only a relationship between married heterosexual couples can provide stability to a child. Merely because a marriage is regulated by the law, it cannot be assumed that marriage alone accords stability to a relationship. For this reason, this classification lacks the rational nexus to the object sought to be achieved and is therefore violative of Article 14.
Regulation 5(3) of the Adoption Regulations violates Article 15 of the Constitution
CJI held that the law cannot make an assumption about good and bad parenting based on the sexuality of individuals. Such an assumption perpetuates a stereotype based on sexuality (that only heterosexuals are good parents and all other parents are bad parents) which is prohibited by Article 15 of the Constitution.
Therefore, in this case, as regards the Adoption rules, the court struck down 5(3) as ultra vires the parent Act (J J Act) and violative of Art 14,15. Regulation 5(3) is read down to exclude the word “marital”. It is clarified that the reference to a ‘couple’ in Regulation 5 includes both married and unmarried couples including queer couples. Both married and unmarried couples can adopt under Regulation 5 of the Adoption Regulations.
Social morality v. Constitutional morality
Morality is a complex concept that can be interpreted subjectively by individuals or society as a whole. Social morality is shaped by various factors such as culture, traditions, beliefs, and customs, and it serves as a framework for evaluating people’s actions. However, it is unfortunate that social morality has been used to discriminate against minority groups, such as those who engage in same-sex relations. To ensure the protection of the rights of such minority groups, it is important that constitutional morality takes precedence over social morality.
Ambedkar defined Constitutional morality as the “Effective coordination between the conflicting interests of different people and the administrative cooperation to resolve them amicably without any confrontation amongst the various groups working for the realization of their ends at any cost.” Our Constitution of India aims to secure our fundamental rights that foster the spirit of growth and development of citizens in society. Following the constitutional morality of equality, fraternalism, secularism, and the many more concepts envisaged in our constitution, it becomes the duty of the three organs of the Government to ensure that majoritarian principles do not affect the policy decisions in such a manner that one group is excluded and their rights are violated. Policy-making must be done according to the values envisaged in the Constitution and not what society demands. Constitutional morality must prevail when there is a violation of Fundamental rights. Just because LGBTQ+ constitute a small fraction of our society doesn’t mean they do not have their fundamental rights. It is a clear violation of Articles 14, 19, and 21.
International position of same-sex relation
As of 2024, 37 countries legally recognize same-sex marriage. The Netherlands is the first country to give legal status to same-sex unions and Greece became the latest to give legal recognition 7.
Conclusion
The Constitution accounts for plural identities and values. It protects the right of every person to be different. Atypical families, by their very nature, assert the right to be different. Difference cannot be discriminated against simply because it exists. Fundamental rights guaranteed to the citizens are not subject to social morality. Articles 19 and 21 protect the rights of every citizen and not some citizens. Therefore, it becomes the duty of the three organs of the government to follow the path paved by our constitution and aim at providing an inclusive and pluralistic society through the enacting and interpretation of the Constitution.
Footnote
- 2018 INSC 790 ↩︎
- Sanjana Ray, Indian Culture Does Recognise Homosexuality, Let Us Count the Ways, TheQuint (2018),
https://www.thequint.com/opinion/homosexuality-rss-ancient-indian-culture-section-377 (last visited Nov 27, 2023). ↩︎ - National Legal Services Authority (NALSA) v. Union of India, AIR 2014 SC 1863 ↩︎
- (1984) 3 SCC 654 ↩︎
- Deepika Singh v. Central Administrative Tribunal ↩︎
- The State Of West Bengal vs Anwar Ali Sarkar 1952 AIR 75 ↩︎
- List of countries where same-sex marriage is legal, Hindustan Times (2023),
https://www.hindustantimes.com/world-news/supreme-court-same-sex-marriage-hearing-list-of-countries-where-same-sex-marriage-is-legal-101681798846639.html (last visited Feb 22, 2024). ↩︎
