Pertaining to my presentation at an international conference in Jan’23 on the topic ‘Cyber victimization of LGBTQ+ youths’, I have been asked a curious yet atypical question by a bunch of young minds. “Ma’am, how do you decide whether a person belongs to LGBTQ+ community, as we all are assigned only a particular gender at birth (M/F)?” Well, the question though was in general terms set me aback. Many of us do not possess a clear notion about the concepts of ‘gender’ and sexual orientation.’ Both these terms are mutually exclusive.
So, what even is sexual orientation? Sexual orientation, as defined by the American Psychological Association refers to: ‘The enduring pattern of emotional, romantic, and/or sexual attractions to men, women, or both sexes. Sexual orientation also refers to a person’s sense of identity based on those attractions, related behaviors, and membership in a community of others who share those attractions.’ (Byrd, 1970). India, ‘so called’ built on pride and reputation- do not want to get judged. Being anything but heterosexual is considered as “not normal.”
India has decriminalized homosexuality in 2018, when a five-judge Bench unanimously struck down Section 377 of IPC (Navtej Singh Johar v. UOI). Only the relationship became legal, not the associated notions. Homosexual couples are not yet entitled to rights like marriage, adoption, succession, inheritance and so on.
The demand for the recognition of same-sex marriage has opened a Pandora’s box of issues which question the very foundation of the institutions of marriage and family as building blocks of social, cultural, and political life. Presently from 18th April’23, the Supreme Court is hearing a batch of petitions seeking legal recognition of same-sex marriage and the country eagerly waits for the apex court’s verdict.
While the petitioners argued that the fundamental rights of the LGBTQ+ community were being restricted, the government raised preliminary objections to the court hearing petitions seeking same sex-marriage. The Centre has readily opposed in the Supreme Court a batch of pleas seeking legal validation of same-sex marriage, saying it would cause complete havoc with the delicate balance of personal laws and accepted societal values.
What’s happening in the Apex court?
Undoubtedly, the commencement of the hearings relating to the petition Supriyo @ Supriya Chakraborty v. Union of India is a breakthrough for the rights of LGBTQ+ community. Way back in 1956, the iconic Justice Vivian Bose said – “The constitution also exists for the common man, for the poor and the humble, for those who have businesses, for the butcher, the baker & the candlemaker.” The constitution of India is the supreme law of the land, and complying by the same is the statutory duty.
At the outset, the center has argued that the judiciary is not competent to decide the matter and it is exclusively under the domain of the Parliament by virtue of Article 246. They contended that even in the countries where same-sex marriages are legalized, most of them have done so through the legislative route. The primary objective of the institution of marriage is procreation and continuance of bloodline.
The Centre went on to submit that it is not discrimination to exclude same sex marriages from institution of marriage because conventional and universally accepted socio-legal relationships across all religions, is deeply rooted in the social customs and is considered a sacrament in all personal laws. Even in Islam, marriage is considered a sacred contract which can only be entered between a biological male and biological female. This deep-rooted social context also finds its validity in the Special Marriage Act 1954.
The esteemed bench comprising of CJI Chandrachud however disdained the notions submitted by the respondents by observing that procreation is not the sole objective of any valid marriage. Marriage is only a gateway that opens so many possibilities and rights, which can be opted upon and is not exhaustive in nature and operation. In the case of heterosexual couples in the present-day scenario, increasingly many heterosexual couples are either childless or single parents.
Again, not all heterosexual couples are competent or sexually competent to procreate; hence the options of IVF, adoption, surrogacy are in practice. That’s completely a matter of choice. The act of decriminalizing homosexuality should not only be confined till legalizing the relation. The judiciary is not in operation only to decide validity of any Act or statute till constitutional limitations; expanding on the concept of constitutional guarantees also comes within the endeavors of the Judiciary.
BCI’s stance
The BCI passed a resolution dated 23/04/2023 which highlights the disadvantages post legalization of same-sex marriages. It considered the ongoing proceedings heard by the 5-judge constitutional bench as “… a matter of great anxiety and serious concern…” BCI highlighted the socio-cultural and religious beliefs of India and that such an overly sensitive matter reflecting the views of all the sections of the society is not harmonious to be heard and decided by the apex court. In a way, the BCI reiterated the arguments of the respondents about the issue being under competence of the Parliament, and not the Judiciary.
The BCI through the passed resolution in a way criticized the Indian Judiciary by the words “… the laws made by the Legislature are truly democratic … they are made after undergoing thorough consultive process and reflect the view of all the sections of the society… the legislature is accountable to the public. “Well, that’s the beauty of our Constitution. All the organs are mutually exclusive in their own domain by virtue of the Doctrine of Separation of Powers. The extremely sensitive matter being heard by the apex court does not suggest intrusion into the legislature’s domain.
The resolution says as I quote “… Law is essentially a codified societal norm that reflects the collective conscience of its people… and the legislature being truly reflective of the will of the people is best suited to deal with such sensitive issue…” Is the BCI directing the apex court bench comprising of the CJI to step down from hearing the matter, can the BCI even do so? This certainly needs a comprehensive analysis. ‘The resolution requesting the Supreme court bench not to continue with the hearings is undermining the basic structure of the Constitution. And after 50 years of Kehsavananda’s win, is the basic structure really at stake?
Analysis: Homosexual marriage
The right to marriage is an established fundamental right under Article 21 of the Constitution. The Supreme court in the Hadiya case (Shafin Jahan v. Asokan K.M. and Ors) held that the choice of a partner whether within or outside marriage lies within the exclusive domain of everyone. If it is a right of heterosexuals, homosexuals should be thus equally entitled to the benefits of the Constitution. The Preamble itself reads “…. For the people” and not explicitly mentions ‘… for heterosexual people.’
The argument of the respondents seems contradictory in its own context. In a country where a manglic boy/girl is forced to marry a dog or Tulsi plant, the argument that marriage is recognized only till biological man and biological woman is vague. Drawing cross-jurisdictional insights from countries like US and UK where homosexual marriage is recognized is no doubt a commendable step as it will help the Indian judiciary to refer to the logical underpinnings building a justificatory framework for granting legal recognition to same-sex marriage.
The apex judiciary is very much empowered to originate new laws through judicial interpretation, which contradicts the center’s view that Judiciary is not competent to discuss the issue. How long will this badgered community remain destitute of legal effects as far as their relationship and aspiration to make family is concerned?
The respondents have put forward a view that Indian rooted history only acknowledges heterosexual marriages and relationships. However, I completely yet politely disagree to this point as Indian cultural texts and history contains several instances of acknowledged homosexual relationships. The fluidity of gender, for humans and yakshas, is an acknowledged concept since ancient India. Queerness can be traced back to ancient epics and scriptures to medieval prose, poetry, art, and architecture.
Kamasutra by Vatsyayana discusses oral sexual acts, termed Auparashtsika, homosexuality and sexual activities among transgender persons. A chapter Purushayita also mentions svairini, a self-willed and independent woman engaged in sexual activities with other women. The book also takes references of men who are attracted to the same gender. The text refers to these individuals as Tritiya-Prakriti or the third nature. Thirteenth-century Sun temple in Konark in Orissa, also exhibits similar metaphors. The Sun temple is devoted to the Hindu Sun god, with the exterior covered in sculptures depicting erotic scenes from the Kamasutra.
On the other hand, ancient Muslim History also contains similar instances. In his Memoir Baburnama, Babur the founder of Mughal empire enunciates his attraction towards a boy named Baburi in Kabul. Babur mentioned him in his memoir. Certain Sufi poetries also exhibit homoerotic or same-sex references.
Further, various religious groups have opposed the petitions. They are only considering the fact that marriage is the basis of procreation and same-sex marriages, if legalized will dilute the concept of marriage. Such an outlook is completely unsubstantiated. My humble question- “isn’t polygamy in Islam diluting the sacred institution of marriage? Can the courts impose monogamy on the Muslim community in India? Isn’t Muta marriage demeaning the very sacrosanctity of marriage?”
There are thus, more suitable reasons which are proving detrimental to the sacred institution of marriage, which such opposition groups have completely overlooked. Also, there are several instances of child marriage throughout the country even after the enactment of the Child marriage prohibition Acts. Are those children physically and mentally capable enough to give birth? Thus, the very claim marriage is only for procreation doesn’t hold any significance. To put one more point, is society ready to accept unhealthy marriages in case any or both the spouse in a heterosexual couple turns out to be homosexual?
The law treats men and women based on biological differences and not on a subjective understanding of one’s sexual orientation. The idea of isolating heterosexuals and LGBTQ+ community and vindicating such segregation as non-discriminatory is a deliberate violation of human rights of the latter. Such a mindset goes against the notion of equality and is arbitrary.
Conclusion
The country recently celebrated 5 decades of the “basic structure doctrine” and the basic structure includes the doctrine of judicial review by application of Article 32 of the Constitution. The respondents along with the BCI resolution are undermining the doctrine. Our Parliament though competent to legislate on the matters of marriage and divorce by operation of Entry 5 of the concurrent list, it is in a manner backed by the Constitution as the law of the land which is in turn interpreted by the court. But the question is what’s the extent of the power of the judiciary then?
The journey is a long one and requires huge interpretations of Special Marriage Act as well as the personal laws to provide a place for same sex marriage. The counsel for the petitioners has argued that there should be an extension in the definition of “marriage” in the marriage laws of India. Further, other Acts like Payment of Gratuity, Income tax which has provisions relating to surviving spouse will also require sufficient interpretation and amendment (if any). There may not be any permanent solutions, but adequate efforts are indispensable.
Through this column, I have tried to put forward a basic analysis on why the issue needs immediate attention. Rest assured, we have complete faith in the apex court which will rightfully seek to protect equality and fundamental rights of all. Wrapping up, let’s keep hope the rights and freedoms of all are recognized irrespective of sexual orientation.
(Opinions are personal. only referred to Supreme Court judgements and texts of Indian history from various published and unpublished sources. Referred in general to the Indian Constitution. Any resemblance to other works will be purely coincidental)
