AUTHOR:

Mr. VIKASH KUMAR,
Student,
School of Law, UPES, Dehradun

CO-AUTHOR:

Mr. TARUN SHARMA,
Student,
School of Law, UPES, Dehradun

Background

In the 21st century, the question arises whether the pre-conceived notion that the objective of marriage is only for procreation can be accepted. The perceptions of modern society is rapidly changing which leads towards the protection of the minorities before the judiciary that started giving paramount importance to the fundamental rights of an individual irrespective of the traditional ideology of the society. The very objective of marriage from which it evolves that is procreation has been changed in many countries like Netherlands (2001), Canada (2005), France (2013), United States of America (2015), Germany (2017),  etc. as they legalized marriage between same-sex where the traditional objective of marriage is impossible to fulfill. Furthermore, the interpretation of section 377 of the Indian Penal Code in the landmark judgement of Navtej Singh Johar & Ors. v. Union of India[1] by Hon’ble Apex Court raised an important question that whether same-sex marriage comes under the purview of fundamental rights enshrined under the Constitution of India. In the case of Lata Singh v. State of U.P.[2], Hon’ble Supreme Court reiterated the judgment of Mr. X v. Hospital Z[3] and declared the right to marry as a fundamental right under article 21 of the Constitution of India and in any free and democratic country, every ‘major’ has right to marry whomsoever he/she likes. Though, in India, same-sex marriage is not legal but in 2011, a Haryana Court allowed two women to offered limited rights of ‘Civil union’ or ‘Domestic Partnership’[4].

The primary objective of Constitutional democracy is transformative and incremental in nature, in the sense that the interpretation and the application of its provisions should not be limited to the mere literal meaning of its words and also if changes are required, then it should be progressively as well as inclusively in consonance with the changing times. Transformative Constitutionalism and constitutional incrementalism provide that the Constitution should not only recognize the rights and dignity of individuals but also develop an atmosphere where every individual irrespective of race, color, caste, sex[5] has equal and adequate opportunity to develop socially, economically and politically. There is a doctrine of ‘progressive realization’ that supports that the rights provided by the Constitution evolve with the evolution of the society to protect an individual’s dignity. If any kind of discrimination happens as per ‘societal morality’ then it is against the concept of ‘Constitutional morality’ and cannot form the basis of legitimate State interest[6]. The work emphasizes on the valid recognition of same-sex marriage in the Indian legal system on the grounds of Fundamental rights, International obligations, constitutional morality etc. 

Same-Sex Marriage and the Fundamental Rights

According to the Hon’ble Supreme Court, the new rights that are not expressly stated in the Constitution can be recognized or interpreted on political, social, economic changes in the country when they meet the demands of the society[7], from the existing fundamental rights. The words ‘any person’ and ‘any citizen’ in the constitution indicate that Courts are under an obligation to protect the fundamental rights of every single citizen, without inclining towards the interest of the majority. So far as the rights of minority communities are concerned, they are also citizens of India and have equal rights enshrined under the constitution of India including right to as a fundamental right implicitly mentioned under Article 21 of Constitution.

Article 14

The principle of equality under Article 14 of the Constitution of India provides equality before law and equal protection of Law to its citizens and mandates the state to prevent unequal treatment. In the case of Stephen’s college v. University of Delhi[8], the court stated that equal protection of the law is a positive obligation on the state and state needs to bring necessary social and economic changes and eradicate the inequalities when it requires fulfilling his duty of providing equal protection without any discrimination. As in the present scenario, it is argued that prohibition of same-sex marriage violates article 14 of the Constitution. As it is already mentioned that the right to marry is a fundamental right under article 21, and under Article 21 clearly states that every person has right to life and personal liberty, so, the applicability of this Article is on every person irrespective of any community. In Navtej Singh Johar & Ors. v. Union of India,[9] the Court propounded that ‘All like should be treated alike’, in other words it implies that equal treatment for all equals with respect to that the LGBT community possess the same human fundamental and constitutional rights as citizens of India as others do, since these rights lie in individuals as natural and human rights. Equality is the edifice on which the entire non-discrimination jurisprudence rest that supports the above-mentioned contentions and substantiate that prohibition of same-sex marriage is denial of ‘equal protection of law’ and ‘equality before law’ and violative of Article 14 of the Constitution.

The principle of reasonable classification cannot be applied in the instant case as the two crucial criteria doesn’t fulfill on prohibition of same-sex marriage. Firstly, the classification of LGBT community and other communities on the right to marry doesn’t depend on the basis of intelligible differentia as the classification is illogical, unfair & unjust and violates the basic structure of the constitution. Secondly, there is no rational nexus between the differentia and objectives sought to be achieved. As in the instant case, the classification is arbitrary and unreasonable in nature,[10] because there is no difference between these people, on the basis of that the differentia can be applied that they all are entitled to have protection of fundamental rights.

Article 15

It prohibits discrimination on the basis of religion, race, caste sex etc. here ‘Sex’ is important. Because, in India the LGBT are not treated equally. In Radha Charan Patnaik v. State of Orissa[11], the court stated that any discriminatory practice between two different sexes is unconstitutional. Any unreasonable classification between two sexes is prohibited under article 15(1) of the constitution of India. 

Article 19

Freedom of speech and expressions mentioned in Article 19(1) (a) implicitly includes an individual capacity of participation in decision making[12]. In Shakti Vahini v. Union of India,[13] the Court recognized that the right to choose a life partner is a fundamental right under Article 19 of the Constitution. When two adults consensually choose each other as life partners, it is a manifestation of their choice which must be recognized under Article 19 and 21 of the Constitution” and when the right is recognized it has the sanctioned of the Constitution and it cannot be ignored to the conception of class honor or group thinking and needs to be protected.

Expression of choice freely describes acceptance of ‘Individual Identity’ and denial of that expression will destroy that identity. The Hon’ble Apex Court in Plethora of cases stated that freedom guaranteed by the Constitution is paramount as compared to morals and social values. The constitutional faith lies in this guarantee which provides opportunity to each individual to protect the ‘right to choose of a partner’[14].

As far as the ‘Constitutional Morality’ under article 19(2) is concerned, the Apex Court in Navtej Singh case[15] stated that the morality mentioned in Article 19(2) is not public morality but constitutional morality. The constitutional morality applies not merely among the majority of any community but throughout the whole society including the minority community. As in Navtej Singh case Apex Court decriminalize section 377 of Indian Penal code and allowed same-sex relationship this implies the affirmative approach of Constitutional morality and the Hon’ble Apex Court with regards to the rights of the LGBT community. The prohibition of same-sex marriage is curtailment of Constitutional morality and its transformative nature that makes Constitution arbitrary, erratic, and capricious.

 

Article 21

The Hon’ble Apex Court while interpreting article 21 of the Constitution of India stated that “Right to life includes Right to live with human dignity and affords protection to irrespective of their identity or orientation, there will be no discrimination.”[16] Furthermore, the word dignity is also interpreted as core intrinsic essential required for every human being for his/her meaningful existence[17]. Dignity and identity are an integral part of an individual’s personality each person’s self-define identity is the foundation of the human aspects of self-determination, dignity and freedom[18]. Therefore, the LGBT community are entitled to have autonomy over the most intimate decisions relating to their personal life including the choice of their partner; also the autonomy is absolute in nature and the state has no right to interfere in the decision-making right of an individual with regard to their choice of partner. 

Non-recognition of same-sex marriage restrains the LGBT community from entering and nurturing enduring relationships. As a result, LGBT individuals has to isolate from the society as not allowing same sex-marriage compelling them to lead a life of solitary existence without a companion, or lead a closeted life as “unapprehend felons’’[19]. Also, not giving valid recognition to the same sex marriage hampers the personal liberty of LGBT community to enter in relationships in a safe and dignified environment with a partner of their choice, and infringes art. 21 of the Constitution[20]

Same-Sex Marriage and International Obligation

Universal Declaration of Human Rights, affirming an individual’s rights which, have been elaborated in subsequent international treaties, economic transfers, regional rights instruments, national Constitutions, and other laws[21]. Article 2 of UDHR provides prohibition of discrimination on the ground of sex. Article 3 provides that everyone has the right to life, liberty. Article 7 provides the concept of equality that everyone should be equal in the eyes of law[22]. Furthermore “Article 10 of International Covenant on Civil and Political Rights provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”[23] and in Article 6 the right to equality is provided that all persons are equal before the law and are entitled without any discrimination to the equal protection of the law[24]. The right to be treated equally and right to life and personal liberty are recognized as fundamental rights at International level. There are numerous countries which recognized same-sex marriage as a part of fundamental right by applying above mentioned principles. Indian is signatory of these International Conventions and declarations and these above mention principles & provisions empowered Dravidian to recognize same-sex marriage as a fundamental right.

The interpretation of fundamental rights in the Indian Constitution has always drawn from the International declaration of Human Rights[25]. The Supreme Court while referring UDHR observed that “the applicability of the Universal Declaration of Human Rights and principles thereof may have to be read, if need be, into the domestic jurisprudence”.[26] Article 51(c) of the Constitution of Indian Itself provides that in cases which consist of infringement of human rights, courts are obliged to apply international law (Declaration, treaties etc.) when there is no inconsistency with corresponding municipal law.[27] The contention is that the International law also protects the human rights or the basic fundamental rights of an individual who is the subject matter of this law and in the absence of domestic law and if there is no contradiction between the domestic law and the international law the international conventions and treaties can be apply to protect the rights of the human beings and the Indian Constitution and the judicial precedents which have discussed above itself granted it and on the basis of that same-sex marriage should be given valid recognition. 

Same in the case of ‘Sexual Harassment of Women at work place, 2013’, the Indian government introduced this legislation under the obligation of Convention on Elimination of All Forms of Discrimination against Women (1979) ratified by India in 1993[28] as they have treated the right to dignity for women as a fundamental right. Furthermore, as per Article 73 and 253 Parliament has all the power to make law for the whole or any part of the territory of India for implementing any treaty, agreement or convention on the matters with respect to which Parliament has power to make laws[29]. Same in the instant scenario the international obligations like UDHR (1948) and ICCPR (1966) creates an obligation for the Indian government to make laws by respecting their right and also provides the concept of equality that everyone should be equal in the eyes of law and are entitled without any discrimination to the equal protection of the law. This above contention substantiates that the legislation must take an affirmative approach by securing the interest of LGBT community by providing their fundamental right ‘right to marry’ and fulfilling the state obligations as the Indian government has ratified both the conventions and this makes both of them binding in nature.   

International Perspective

Approx. thirty countries in the world has legalized the same-sex marriage and many are on the way to legalize. In this we will cover few countries and try to understand their perspective, their changes on the legalization of same-sex marriage. This will help us to determine changes that might otherwise be overlooked.

Costa Rica

Recently in May 2020, Costa Rica a country in Central America legalized same-sex marriage. This make the Costa Rica first country in Central America and sixth country in Latin America after Argentina, Ecuador, Brazil, Colombia and Uruguay to legalize same-sex marriage.[30] The Apex Court in 2018, while legalizing same-sex marriage stated that ‘the ban on same-sex marriage is unconstitutional and discriminatory’ and gave 18 Months to the country parliament to amend the marriage law and bring equality in the law of marriage[31].  The legalization judgment was influenced from the Inter-American Court of Human Rights opinion that countries signatories of American Convention on Human Rights are required to allow same-sex marriage[32]. The President in an interview said that this will guarantee “no person will face discrimination for their sexual orientation”.[33] As per the experts the main hurdle in legalization was the opposition from the religious groups as the region of Costa Rica is marked by religious conservatism. Enrique Sanchez first openly gay congressman said that “the legalization is the result to struggles of many years by many activists and now, there will be no second class families or second-rate people”.[34] The step will not only give security to their family but also plays a pivotal role in the social and cultural transformation of the country[35].

Germany

Same-sex marriage has been recognized in Germany since 1 October 2017. For the recognition of the rights of minorities legislation has been enacted on 28 July 2017. Even before this legislation there was ‘Registered life partnerships’ available for same-sex couples. The judiciary also recognized these rights. The Federal Court extended the benefits granted by these partnerships for the same-sex couples. The ‘Registered life partner’ law to include, among other things, the possibility of simpler alimony, divorce and possibility of stepchild adoption rules, but it excludes same-sex benefits in the marriage[36]. In Germany procreation was not settled as primary objective of any marriage but same- sex couples who wanted to have family faced barriers of legal and cultural, where the social values prevails. It is very important that society should accept these changes and it is still a huge barrier in many countries where something is happening against the traditional social values.

As things have changed and it was considered that a married man can be recognized as the father of a child even if he is not biologically connected with the child under the concept of ‘Notional Paternity’. But what about the married lesbian couples with respect to their parenthood. But it is expected that a bill will be presented shortly that will allow married lesbian couples to be recognized as co-parents automatically. In Germany where surrogacy is banned and domestic adoptions are very rare in nature. It is very necessary that while giving the right to marry all other concerned rights needs to be given to the couples. Some same-sex couples say that they feel that the system still discriminates against them. It is required that the attitudes of people should change in line with the law granting equal marriage rights.[37]

Canada

Canada was the fourth country to permit same-sex marriages, after the Netherlands, Belgium and Spain (2005). Same-sex marriage was introduced in Canada by the decision of judiciary in several provinces in 2003 before legally recognized nationwide. Legislation has been enacted that is the Civil Marriage Act on July 20 2005. Ontario[38] was the first province which legally recognized same sex marriage in 2003. Before giving federal recognition of same-sex marriage, the decision of the Court had already introduced in eight out of ten provinces and one of the three territories, whose population collectively is about 90% of Canada’s population. More than 3000 same-sex couples had already married before the enactment of Civil Marriage Act. The legal benefits associated with marriage have been extended to cohabit in the case of same-sex couples[39].

In Canada the judiciary has supported same-sex marriage before enactment of legislation. In 1999 the Supreme Court of Canada in the case of M. v. H.[40] highlighted that same-sex couples are entitled for the benefits associated with marriage that are financial and legal both in nature. But there is so much diversity with respect to same-sex marriage because most laws which were for couples were within the provincial framework rather than federal jurisdiction. As a result of that rights varied somewhat from province to province. When the Civil Marriage Act came into force there were certain amendments required in definitions for husband and wife be amended to spouse. There was an amendment also in Income Tax Act that replaced the term natural parent with legal parent to ensure that in the case of divorce, support payments would be possible to the children of both opposite-sex and same-sex couples. This shows that the primary objective of the marriage is to secure the rights of the couples on the other hand the procreation is incidental in nature.[41]      

United States

In 2015, US Apex court legalized the same-sex marriage which removed the ban imposed by 14 states on the same-sex marriage was no longer valid[42]. Justice Kennedy, the author of this celebrated judgment wrote, “Nothing is more profound than marriage and it embodies the high value of love, fidelity, devotion, sacrifice and family and marriage is the keystone of our social order”.[43] The court agreed that the institution of marriage has evolved a lot from civilization to civilization. It was alleged that the ban on same-sex marriage violates constitutional protections as it discriminates against the same-sex couple by prohibiting them to fully access their rights of social security, housing, taxes, copyright, veterans’ benefits and many others.[44] In US the government provides few benefit to the married couple and before the judgment same-sex couple were not entitled for these benefits like same-sex couples were not able to jointly file for taxes etc.

Conclusion

The duty of the court is not only to secure justice but also to prevent the miscarriage of Justice[45].  The principle of “Not only must Justice be done; it must also be seen to be done” is applied here, the judgment of decriminalization of section 377 is the main example of this as only decriminalizing is not justice for the LGBT community, as what is the objective behind decriminalization, if the LGBT community are not entitled to get a family, if they are not entitled to get the companionship of other, if they are not entitled to enforce their fundamental rights of marriage. Curtailing, the right of same-sex marriage is violation of Fundamental rights mentioned in article 14, 15, 19 & 21. Furthermore, India has ratified few declarations and covenants that prohibits gender discrimination and promote equality. These ratification also creates constitutional obligations to legalize same-sex marriage in India. Till now, approx. thirty country in the world has legalized same-sex marriage and many are on the way to legalize. Apart from recognition, few other changes are also required like right of adoption, right of alimony etc. as given in different countries like Germany. There are many other legal rights also associated with the legalization as Indian government also provide many benefits to married couple and right now because of the same-sex marriage ban they are not entitled for the benefits. Furthermore, many other rights are also in question like right of inheritance, maintenance and many others. The recognition will not only give them a dignified life but also help them to exercise other associated rights. The legalization of same-sex marriage is a step in cultural transformation of the country.

[1] A.I.R. 2018 S.C. 4321.

[2]A.I.R. 2006 S.C. 2522.

[3]A.I.R. 2003 S.C. 664.

[4] Nayantara Ravichandran, Legal Recognition of Same-Sex Relationships in India, Manupatra (Nov. 17, 2011), http://docs.manupatra.in/newsline/articles/Upload/B07BDF52-0AA4-4881-96AC-C742B9DB217D.pdf.

[5] INDIA CONST. art. 1, cl. 2.

[6] M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1353-70 (7th ed. 2014).

[7]AVERY, AMERICA’S CHANGING ATTITUDES TOWARDS HOMOSEXUAL, CIVIL UNIONS, AND SAME-GENDER MARRIAGE 52-79 (2d ed. 1977). 

[8]A.I.R. 1992 S.C. 8.

[9] W. P. 2016 Crl. 76.

[10] State of W.B. v. Anwar Ali Sarkar, A.I.R 1952 S.C. 75.

[11] AIR 1969 Ori 237.

[12] Union of India v Association for Democratic Rights, (2002) 5 S.C.C. 294.

[13] (2018) 7 S.C.C. 192.  

[14] Shrawan Kumar v Nirmala, (2013) 96 A.L.R. 904.

[15] STEPHENS, supra note 8.

[16] Olga Tellis v. Bombay Municipal Corporation, A.I.R. 1986 S.C. 180 (India).

[17] Riya Jain, Article 21 of the Constitution of India- Right to life and personal liberty, Academike (Nov. 13, 2015), https://www.lawctopus.com/academike/article-21-of-the-constitution-of-india-right-to-life-and-personal-liberty/.

[18] National Legal Services Authority v. Union of India and Others, A.I.R. 2014 S.C. 1863 (India).

[19] Kenneth Roth, LGBT: Moving towards Equality, Human Rights Watch (Jan. 23, 2015), https://www.hrw.org/news/2015/01/23/lgbt-moving-towards-equality.

[20] Advocate Mohan, Case Comment, Law For All (Sept. 07, 2018), https://freelegalconsultancy.blogspot.com /search? q=same+sex.

[21] Gordon Brown, The Universal Declaration of Human Rights in the 21st Century: A Living Document in a Changing World, Global Institute for Advanced Study (Jan. 2016), https://www.equalrightstrust.org/ertdocumentbank /Brown-Universal-Declaration-Human-Rights-21C.pdf.

[22] United Nation General Assembly, Universal Declaration of Human Rights, United Nation (Dec. 10, 1948), https://www.un.org/en/universal-declaration-human-rights/.

[23] CCLA Assistant, Summary: International Covenant on Civil and Political Rights (ICCPR), Canadian Civil Liberties Association (Oct. 27, 2015), https://ccla.org/summary-international-covenant-on-civil-and-political-rights-iccpr/.

[24] ICCPR, supra note 22.

[25] Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597 (India).

[26] Chairman, Railway Board v. Chandrima Das, A.I.R. 2000 S.C. 988 (India).

[27] India CONST. art. 51, cl. C.

[28] Division of International Protection Services, Displacement, Statelessness and Questions of Gender Equality under the Convention on the Elimination of All Forms of Discrimination against Women, United Nation High Commissioner for Refugees (Aug., 2009), https://www.refworld.org/pdfid/4a8aa8bd2.pdf.

[29] Law Student, The Indian Constitution and Its Contribution to International Law, Law Teacher (Feb. 02, 2018), https://www.lawteacher.net/free-law-essays/international-law/the-indian-constitution-and-its-contribution-to-international-law-essay.php.

[30] Sophie Lewis, Costa Rica becomes the first country in Central America to legalize same-sex marriage, Cbs News (May 27, 2020), https://www.cbsnews.com/news/costa-rica-first-country-central-america-legalize-same-sex-marriage/.

[31] Austa Somvichian, Costa Rica becomes first country in Central America to legalize same-sex marriage, The Hill (May 27, 2020), https://thehill.com/changing-america/respect/equality/499790-costa-rica-becomes-first-country-in-central-america-to.

[32] AP, Costa Rica latest country to legalize same-sex marriage, The Hindu (May 27, 2020), https://www.thehindu.com/news/international/costa-rica-latest-country-to-legalize-same-sex-marriage/article31683958.ece.

[33] Unknown, Costa Rica Supreme Court rules against same-sex marriage ban, BBC (Aug. 10, 2018), https://www.bbc.com/news/world-latin-america-45138687.

[34] Oscar Lopez, Costa Rica allows same-sex marriages in a first for Central America, Reuters (May 26, 2020), https://www.reuters.com/article/us-costarica-lgbt-marriage-trfn/costa-rica-allows-same-sex-marriages-in-a-first-for-central-america-idUSKBN23217L.

[35] AJNA, Costa Rica allows same-sex marriages in first for Central America, Aljazeera (May 26, 2020), https://www.aljazeera.com/news/2020/05/costa-rica-sex-marriages-central-america-200526123834393.html.

[36] Laura Smith, Love wins in Germany, CNN (Oct. 1, 2017), https://edition.cnn.com/interactive/2017/ 06/world/germany-same-sex-marriage-cnnphotos/.

[37] Humpert S., Somewhere over the Rainbow: Sexual orientation and Earnings in Germany, 73 International Journal of Manpower, 733, 737-38(2015).

[38] Helpern v. Canada, 95 C.R.R. 57, 60 (2002).

[39] Christy M. Glass, The Evolution of Same-Sex Marriage in Canada: Lessons the U.S. Can Learn, Michigan Journal of Gender & Law (2008), https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1077&context=mjgl.

[40] 2 S.C.R. 3 (1999).

[41] 2 JULIEN D. PAYNE & MARILYN A. PAYNE, CANADIAN FAMILY LAW 49-55 (4th ed. 2011).

[42] Unknown, US Supreme Court rules gay marriage is legal nationwide, BBC (June 27, 2015), https://www.bbc.com/news/world-us-canada-33290341.

[43] Adam Liptak, Supreme Court Ruling Makes Same-Sex Marriage a Right Nationwide, The New York Times (June 26, 2015), https://www.nytimes.com/2015/06/27/us/supreme-court-same-sex-marriage.html.

[44] German Lopez, Same-sex marriage in the US explained, Vox (Jun. 29, 2015), https://www.vox.com/ 2015/6/26/18093652 /same-sex-marriage.

[45] Kumaon Mandal Vikas Nigam Limited v. Girja Shankar Pant, (2001) 1 S.C.C. 182 (India).

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