A same sex couple submitted a petition that they did not enjoy the rights of married couples in spite of repeated SC rulings, that all adults have a right to marry a person of their choice. The petition highlighted the lack of a legal framework that would permit individuals belonging to the LGBTQ+ community to marry a partner of their choice.
The Special Marriage Act was claimed unconstitutional and discriminatory against same-sex couples, and violated the fundamental principles enshrined in the Constitution. The petition eventually reached a five-judge Constitution bench of the SC headed by the CJI, which issued a notice in response to the petition seeking legal recognition of their same-sex marriage under the Special Marriage Act of 1954. The comments of the CJI on the subject in the course of one of the hearings aroused my curiosity. The SG, Tushar Mehta, stated that the ‘legislative intent’ of marriage throughout has been a “relationship between a biological man and a biological female”. The CJI Chandrachud replied, “It’s not the question of what your genitals are. It’s far more complex. So even when Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute, based on genitals.” The question of gender assignment in medical terms is a matter of the external genitalia. True there are rare instances of inadequate development of the sexual organs which can range from simple cases like undescended testes, to gross malformations and intersex presentations which require genetic studies to determine the status of the X and Y chromosomes and gender assignment. But this does not appear to be what the CJI was referring to.
He was referring to situations where in spite of clear sexual assignment based on external genitalia, there appear to be other contributory factors like the mental orientation of the individual that require to be taken onto consideration. A question of “mind over matter”. We have come a long way from the simple term “homosexual”. Today, as the SG pointed out, we speak of LGBTQIA+, “where ‘L’ stands for lesbian, ‘G’ for gay, ‘B’ for bisexual, ‘T’ for transgender, ‘Q’ for queer, ‘I’ for intersex, and ‘A’ for asexual. But we have not examined what the plus symbol represents.” He further elaborated that there are 72 shades or variations, which is why we write the plus symbol. “I understand the difference between gender and sex, and sexual orientation.” Not only would the number of gender identities recognised within the spectrum present difficulties, but he also pointed out that if such marriages were to be permitted, as many as 160 legislations would be affected, leading to ‘irreconcilable’ differences in the statutory framework of the country, as in situations like adoption, succession, inheritance, PF and pension, where the terms husband and wife appear. For example, the law states that the wife acquires the domicile of the husband in case of marriage. In a same sex marriage, which partner would be the husband and which partner the wife? A wife specifically has the right to seek divorce on grounds of rape, sodomy or bestiality; who would be assigned this right? “The right to marry does not include the right to compel the State to create a new definition of marriage,” SG added. “Only the Parliament is competent to do this and therefore, this is a matter best left for it to decide,” he urged. The Bar Council of India has claimed that 99.9% of people are opposed to same-sex marriage, and the issue best left to the Parliament to decide. Not only is this figure baseless, but made without any locus standi in the matter. Neither is it urban elitist.
Which raises a question. Given the abysmal record of its functioning in recent times, parliament does not inspire any confidence in its capacity to have a mature debate on such a complex issue and come to a meaningful conclusion in the interests of the nation. How many crucial bills have been passed without any semblance of debate because parties of all hues have rendered both houses totally impotent, for political mileage. Homosexuality was decriminalised by the Delhi HC 14 years ago, and by the SC 5 years ago. If parliament had acted as a responsible, progressive legislative authority, this petition may not have been necessary at all.
In 1973, a 13-judge bench in a landmark ruling (Kesavananda Bharti vs State of Kerala) declared “Parliament cannot alter the basic structure or framework of the Constitution”. Legal pundits believe that this single statement has enabled India to continue as a democracy. A 9-judge bench in 2017 (KS Puttaswamy vs UOI) conferred the right to marry a person of their choice as being a “real right founded on sound constitutional doctrine”. In Navtej Singh Johar vs UOI, the SC declared the LGBTQ community as being entitled to “the full range of constitutional rights” and “intrinsic to the constitutional protection of sexual orientation”. Same sex marriage is legal in the US. (Obergefel vs Hodges) as also in Sweden, Norway, Austria, Brazil, Uruguay etc. At the time of writing, the hearings stand at a stage where the SG has suggested forming a committee headed by a cabinet secretary to address the concerns of same sex couples and its legal ramifications, without legally recognising the relationship as marriage. The CJI has termed it a “very fair suggestion”
Whatever the outcome of the hearings, its consequences are certain to shake to the core the very foundations of society. The SC on the one hand, defending rights under the constitution, and the SG claiming to defend the interests of society, should not precipitate a clash of egos. Justice must prevail for all, and at all times.
(The writer is a founder
member of VHAG)