The Constitution Bench of the Supreme Court has started hearing a batch of 20 petitions seeking recognition of marriage amongst same sex partners. The hearing has generated significant interest and had a fiery start with the Central Government questioning the maintainability of the petitions.
About a decade back, it seemed beyond imagination that 5 judges would even assemble for such an issue. In 2013, in Suresh Kumar Koushal vs. Naz Foundation, a 2 judge bench of the Supreme Court held that Section 377 of the IPC, which criminalised sex amongst consenting same-sex adults, is constitutional. The Court adopted a literal interpretation. It held that the fact the Legislature did not think it proper to delete the provision, should guide the Court’s understanding of character, scope, ambit and import. Thus, the issue had to be considered by the law makers and not a Court.
In years following it, the Supreme Court has not curtailed its decision making by shifting the onus on the legislature. There has been a gradual evolution of law with emphasis on sexual rights and sexual identity.
In National Legal Services Authority (2014), the Court took note of the continuous oppression and granted legal recognition to transgender persons by declaring that the right to self-determine one’s gender identity was a constitutionally protected right under Articles 14, 15, 19 & 21 of the Constitution of India. This initiated the law makers and the Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019 to provide the legal framework for the protection of rights of transgender persons. Thereafter, in Jigya Yadav v. CBSE, (2021), while dealing with the issue of change of name of a cisgender, the Court held that an individual must an individual must be in complete control of her name and law must enable her to retain as well as to exercise such control freely “for all times”.
Right to privacy of an individual was recognised as a fundamental right under Article 21 of the Constitution, in a decision by a bench of nine judges in Retd. Justice K.S Puttaswamy (2017). The Central Government had strongly contested the matter in the Court. The right to privacy was held to be an intrinsic part of the right to life and personal liberty and intimately connected to the autonomy and dignity of an individual. The right was construed as giving protection to the individual’s zone of choice and self-determination to create a private space which protects all elements that are crucial to gender identity.
Despite absence of law placing “right to privacy” as a constitutional right, the Court took the view that judicial review must be exercised with insight into social values to supplement the changing social needs.
The law turned a full circle, when in Navtej Singh Johar(2018), a five judge Bench of the Supreme Court unanimously held that Section 377 of IPC, insofar as it applied to consensual sexual conduct between adults in private, was unconstitutional. The decision in Suresh Koushal (supra) was overruled. Amongst other decisions, the Court relied upon the decisions in Shafin Jahan v. Asokan K.M.( 2018) and Shakti Vahini (2018) to reaffirm that an adult’s right to “choose a life partner of his/her choice” is a facet of individual liberty.
Incidentally in the same year, in Joseph Shine,Section 497 of IPC, which decriminalised adultery was also struck down. The Court held that our Constitution is organic in nature; with the passage of time law must change, and march in consonance with the developing concepts.
In January this year, the Supreme Court noted that several petitions seeking recognition of same sex marriage in India are pending before various High Court and transferred to itself all the petitions for hearing. In a subsequent order, the Court noted the gamut of issues involving the inter play between constitutional rights on the one hand and specific legislative enactments including the Special Marriage Act 1954, the Foreign Marriage Act 1969, the Hindu Marriage Act 1955, the Citizenship Act and the Transgender Persons Protection of Rights Act 2019 on the other. The matter was thus, directed to be heard by a Constitution Bench.
In reply to the petitions, the Central Government has taken a stand that living together as partners and having sexual relationship by same sex individuals is not comparable to the Indian family unit concept which involves biological man and biological woman with children born out of such wedlock.Islamic religious body Jamiat-Ulama-I-Hind, has also opposed same sex marriages on the ground that notions of western culture should not be imposed on India. The National Commission for Protection of Child Rights (NCPCR) has relied on a study which shows that a child adopted by same sex couples gets affected both socially and psychologically.
Legal rights for LBGTQ people have expanded over the past decade with a major push by the Supreme Court. Our courts have been more liberal on several complex human rights issues such as abortion, euthanasia and death penalty. In Asia, only Taiwan permits same-sex marriage. If the court were to hold same-sex marriage it would be a case study throughout the globe.
However, the issues being considered by the Supreme Court are complex. There are no easy answers or responses when a discussion ventures into moral, religious, and legal aspects. There is no universal acceptability of same sex marriages. Permitting sex between same sex consenting couples, can be justified on the basis of “right to privacy.” It would be interesting to see how the recent evolution of law is tested in the present matter. The institution of marriage is subject to State’s recognition and approval. The Court has noted various legislations that may come into play if same sex marriage is recognised. Some of the Petitioners have already raised the issue of discrimination in getting family insurance, and other bouquet of rights which flow from recognition of marriage. On the other hand, it is quite possible that the Court may limit it judicial assessment to Special Marriage Act, and interpret it to allow marriage amongst same sex couple, without getting into personal laws.
Looked from any perspective, the judgment by the Supreme Court would be a defining moment in Indian legal history.
Amit Gupta, an Oxford University and Columbia Law School graduate, specialises as Counsel/Litigator in New Delhi.