ABSTRACT

This abstract aims to provide a concise yet comprehensive overview of the key aspects discussed in the 366-page Supreme Court judgement pertaining to the constitutional validity of excluding LGBTQ+ individuals from marriage under Indian laws. The petition was filed by several LGBTQ+ individuals and organizations seeking a declaration that exclusion from marriage on the basis of sexual orientation is a violation of fundamental rights under Articles 14, 15, 19 and 21 of the Indian Constitution. The Union of India defended the existing marriage laws by arguing that the institution of marriage has traditionally only contemplated heterosexual unions, and granting marriage rights to LGBTQ+ couples would require major amendments to be made in various statutes. The Supreme Court evaluated whether sexual orientation is a “core trait” that cannot form a reasonable classification under Article 14, and also examined if such exclusion amounts to discrimination on the basis of “sex” under Article 15. While striking down the discriminatory provisions, the Court read down certain terms in marriage laws like “spouse”, “husband”, “wife” in a gender-neutral manner to include LGBTQ+ couples. However, it refrained from directly reading in same-sex marriage. The five-judge Constitution bench unanimously held that sexual orientation is a natural phenomenon and LGBTQ+ individuals have the same rights as others, though one of the judges dissented on the issue of same-sex marriage.

INTRODUCTION

The present batch of writ petitions and transfer cases involve important questions regarding the rights of LGBTQIA+ individuals in India. At the outset, it is pertinent to understand some key aspects about the petitioners and the issues raised by them to get a comprehensive view of the matter. The petitioners include members from the LGBTQIA+ community such as lesbian, gay, bisexual and transgender persons who have approached the Hon’ble Supreme Court seeking legal recognition of their relationships. A brief glimpse into their lives and struggles will help appreciate the discrimination they have faced due to the absence of such recognition. One of the petitioners is a public figure who has openly talked about facing rejection from her family members and societal isolation due to her gender identity. She has courageously raised awareness about transgender rights. Another petitioner living in a small town narrates facing societal disapproval for being attracted to persons of the same sex. Such experiences bring to light the hardships caused due to non-acceptance of LGBTQIA+ individuals.

The petitioners have challenged several provisions of the Hindu Marriage Act, 1955, the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969 on the grounds that they do not recognize same-sex marriages and marriages of transgender persons, thereby violating their fundamental rights to equality, life with dignity, freedom of expression and religion. They have argued that the exclusion of LGBTQIA+ individuals from these marriage statutes indirectly discriminates against them based on their sexual orientation and gender identity. It is their contention that the right to marry a partner of their choice is a core element of personal liberty guaranteed under the Constitution. The petitioners have also questioned certain rules framed under the Juvenile Justice Act, 2015 which require married couples to adopt children, thereby effectively barring same-sex couples and live-in partners from the option of adoption. They have alleged that such rules infringe upon the rights of LGBTQIA+ individuals and children. Additionally, some petitioners have raised the issue of facing violence and coercion from their natal families for being in same-sex relationships, seeking protection of their life and liberty in this regard.

The matters involve the interpretation of fundamental rights such as right to equality, life with dignity, freedom of speech and expression, religion and movement guaranteed under Articles 14, 15, 19 and 21 of the Constitution in the context of rights of LGBTQIA+ persons. They require examining whether the exclusion of same-sex relationships and marriages from the ambit of the marriage statutes amounts to discrimination on the grounds of sexual orientation and gender identity. It also necessitates an analysis of whether such exclusion infringes upon the personal liberty of individuals to make intimate choices without fear of societal sanction.  The petitions have far-reaching consequences as they deal with the very institution of marriage and what it means to different sections of society. On one hand, a decision granting legal recognition to same-sex marriages would secure the rights of LGBTQIA+ individuals to freely choose their partners without stigma. On the other hand, it may invite opposition from those believing that marriage should remain a union between biological man and woman. The Court will have to balance these competing claims while adjudicating on the issues.

The matters assume great significance as they come in the backdrop of the historic Navtej Singh Johar judgment of 2018 which decriminalized consensual homosexual acts, yet members of the community continue facing discrimination. While the judgment struck down the stigma of unnaturalness from homosexuality, its social acceptance remains a work in progress. A ruling from the Supreme Court settling the question of marriage rights will further the cause of equality by ensuring LGBTQIA+ persons can access all benefits associated with a legally recognized union. At the same time, the Court will have to carefully craft its orders keeping in mind the diversity of views existing in society on this sensitive topic. In light of the above, it is evident that the petitions involve determining the extent of constitutional protection available to the rights of LGBTQIA+ individuals, especially with regard to marriage. They provide an opportunity for the Supreme Court to secure the right to intimate personal choices without fear of sanction, while appreciating the nuanced social realities. It remains to be seen how the Court balances civil liberties with social conservatism in this most awaited verdict. A judicious decision will aid the inclusion of all genders and sexualities as equal citizens before the law.

FACTS OF THE CASE

The present batch of writ petitions concerns the constitutional rights of lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQIA+) persons in India. At the outset, it is important to understand the factual background that led to the filing of these petitions. A perusal of the documents reveals a long history of discrimination and oppression faced by the LGBTQIA+ community in India. For over a century, section 377 of the Indian Penal Code criminalized any sexual activities “against the order of nature.” This colonial provision was used by the authorities to violate the basic dignity and autonomy of LGBTQIA+ individuals. Merely for engaging in consensual same-sex relationships, many were subjected to public ridicule, social ostracization, and legal persecution. The LGBTQIA+ community lived under constant fear of prosecution due to their sexual orientation. This took a huge toll on their mental health and prevented them from living freely as equal citizens.

In 2009, a batch of petitions was filed before the Delhi High Court challenging the constitutional validity of section 377. It was argued that criminalizing private homosexual conduct between consenting adults violated fundamental rights like life, liberty, and privacy. After a decade-long legal battle, a five-judge Supreme Court bench unanimously struck down section 377 in the landmark Navtej Singh Johar judgment of 2018. While this decriminalized same-sex relationships, discrimination and oppression continued in other forms. The petitioners in the present case are members of the LGBTQIA+ community who continue to face economic, social and political marginalization on account of their sexual orientation and gender identity. They are denied equal status and subjected to violence by state authorities and society. For instance, the transgender community lacks access to education, healthcare, and employment opportunities. They are often forced into sex work for survival. The police and prison officials regularly inflict violence on the queer community with impunity.

At a deeper level, LGBTQIA+ individuals struggle with lack of familial and social acceptance. Many are coerced into marriages or rehabilitation centers by their own families. Their movements are monitored and privacy violated. The petitioners argue that this stems from non-recognition of their relationships by the state. While same-sex relationships are legal, same-sex couples are denied the right to marry or enter into registered domestic partnerships. The petitioners have challenged this exclusion from the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969 which govern civil marriages of individuals without access to religious rites. They contend this violates their fundamental rights to equality, life, liberty, dignity, privacy, and freedom of expression. It deprives them of social welfare benefits associated with marital status. The petitioners seek a declaration of their right to marry and recognition of their relationships under these statutes. This brief factual background provides the necessary context to understand the nature of claims and reliefs sought in the present batch of petitions. It highlights the long-standing discrimination faced by the LGBTQIA+ community and ongoing issues of social hostility, familial rejection, and lack of legal protection that prevent them from living with dignity as equal citizens. The petitioners have approached the Supreme Court as the last resort to remedy these violations of their fundamental rights.

ISSUE RAISED

The present writ petitions raise important issues concerning the rights of LGBTQIA+ individuals in India. The petitions challenge discriminatory laws and seek remedies from the Supreme Court.

Here are the key issues raised for consideration:

• Do members of the LGBTQIA+ community have the fundamental right to choose a partner, including a partner of the same sex or gender? The petitioners argue that restricting this choice based on sexual orientation or gender identity violates Articles 14, 15, 19, and 21 of the Constitution.
• Do LGBTQIA+ individuals have the right to enter into a union with a partner of their choice and receive legal recognition of such unions? The denial of recognition is argued to infringe upon the petitioners’ rights to dignity, expression, and life with their loved ones.
• Are provisions of the Special Marriage Act that do not recognize same-sex marriages unconstitutional? The petitioners claim this exclusion violates rights to equality and non-discrimination.
• Is the Foreign Marriage Act unconstitutional in not recognizing overseas marriages of LGBTQIA+ citizens of India? This is contended to deprive citizens of their right to marry and violate Articles 14, 15, 19 and 21.

ARGUMENTS FROM PETITIONER

The petitioners have made several well-reasoned arguments before the Hon’ble Court in support of their case. They contend that the exclusion of LGBTQ individuals from the institution of marriage violates fundamental rights guaranteed under Part III of the Constitution.

Firstly, the petitioners argue that the right to choose a life partner is integral to the right to life and personal liberty under Article 21. They assert that the ability to enter into a committed relationship of one’s choice and have it recognized allows individuals to develop their personalities and realize their potential. Denying LGBTQ persons the right to marry solely on the basis of their sexual orientation or gender identity infringes on this core aspect of personhood.

Secondly, the petitioners submit that the exclusion of same-sex couples from the ambit of marriage laws like the Special Marriage Act violates the right to equality before law and equal protection of laws under Article 14. While sexual orientation forms a reasonable classification, there is no intelligible differentia between heterosexual and homosexual individuals to warrant differential treatment in the context of marriage. Further, no legitimate state aim is served by this discrimination.

Thirdly, the petitioners claim that the denial of marital rights amounts to an unreasonable restriction on the freedom of speech and expression under Article 19(1)(a), as well as the freedoms of association and assembly under Article 19 19 19(1)(b). A relationship is a form of personal bond and expression that deserves protection. The state has not been able to demonstrate that exclusion of LGBTQ couples from marriage is a reasonable restriction in the interests of the general public.

Fourthly, the petitioners argue that the bar on same-sex marriage infringes the right to dignity of LGBTQ individuals under Article 21. It treats them as unequal moral beings and denies them the ability to publicly commit to their partners. The state cannot claim that queer relationships do not warrant legal recognition or that marriage must remain heteronormative.

In light of these detailed and well-founded arguments, the petitioners pray that this Hon’ble Court may recognize the rights of LGBTQ persons to marry and enter into committed into committed into committed relationships of their choice. They have established a strong prima facie case for relief and the matter requires consideration.

ARGUMENTS FROM RESPONDENTS

The respondents in the case put forth several arguments against recognizing same-sex marriages and queer relationships under the law. Their primary contention was that marriage, as an institution, has traditionally only been understood as a union between a man and a woman. They argued that the very conception of marriage envisages procreation as one of its aims, which is only possible in heterosexual relationships. However, others pointed out that procreation has never been an essential characteristic of marriage and many heterosexual marriages also do not result in children. It was further argued by the respondents that the institution of marriage occupies a central role in sustaining society and moving it forward. According to them, the State recognizes and regulates relationships only when there is a legitimate public interest involved. They believed the State interest lies in legally recognizing opposite-sex unions for procreation, which ensures the survival of society. However, critics highlighted that many States globally have moved beyond such narrow interests and now protect diverse family forms equally.

The respondents also emphasized that granting recognition to same-sex marriages could open the floodgates for other relationships like incestuous or polygamous ones to also demand acceptance. But legal experts clarified that courts can continue to regulate relationships based on principles of consent, autonomy and harm. Comparatively, same-sex unions involve consenting adults and hence do not cause the same harms. It was submitted that marriage is a public institution involving certain rights and responsibilities of the partners towards each other as well as any children they may have. However, supporters of queer rights pointed out that same-sex couples also remain committed to their partners and want to care for any children they may have through adoption or other means. There is no data to suggest that the interests of such children would be adversely impacted.

The respondents further said that providing marital benefits to same-sex couples would require amending numerous laws which are premised on the heterosexual concept of marriage. But legal experts argued that courts are fully empowered to read sexuality-neutral interpretations of statutes and address any implementation challenges on a case-by-case basis. A few intervenors also raised concerns about implications for strategic sectors like the armed forces but did not provide substantial reasoning to back this.

JUDGEMENT

The judgement section of the case provides a detailed and thorough analysis of the arguments made by all parties involved. The Supreme Court bench, led by the Chief Justice, evaluated submissions made from over 30 lawyers representing the petitioners, intervenors and respondents. In a landmark ruling, the bench recognized the fundamental rights of LGBTQIA+ individuals to form unions of their choice and seek equal treatment under the law. The judges acknowledged the discrimination and stigma faced by the community while balancing various legal and social factors. Let us examine the key aspects of the well-reasoned judgement in detail.

To start with, the Court recognized the diversity within the queer community in India. It noted that LGBTQIA+ identities are not new phenomena and have existed in our country for centuries. Historical texts and ancient scriptures make references to people of “third-gender” and same-sex relationships. However, colonial laws like Section 377 of the IPC criminalized such relationships and imposed an alien notion of morality. The judgement also highlighted that queerness transcends class, religion, geography and is not restricted to urban areas. Relying on past studies and news reports, it showed examples of people from all walks of life – from rural villages to metros – who identified as part of the community. This helped dispel the misconception that it is a “western import” or phenomenon seen only among privileged urban elites.

While examining the right to form “unions”, the Court delved into the meaning of key constitutional concepts like life, liberty, dignity, equality, freedom of speech & expression, and right to residence. It opined that the denial of legal recognition for same-sex relationships infringes upon these fundamental rights. The bench also agreed with petitioners that the “right to life” must include the right to choose a partner and seek fulfillment through an intimate association. The judges then focused their attention on the institution of marriage itself. After detailed deliberations, they concluded that marriage is an evolving concept defined differently in personal, religious and statutory laws. There is no universal definition and what constitutes a marriage depends on the consenting parties. As long as legal preconditions are met, the law recognizes it as a valid union. The content and purpose is an individual choice.

The Court also acknowledged that over the decades, certain practices which were considered “normal” in marriages like Sati, child marriage and dowry were later banned by statutes. This showed marriage as an institution adapts to social changes. It cannot remain static and must keep pace with evolving notions of equality and dignity. The bench emphasized that the exclusion of LGBTQIA+ people from marriage amounts to discrimination. While examining arguments against same-sex marriage, the Court disagreed with the notion that it would dilute the institution of heterosexual marriage or open floodgates for other “unnatural” relationships. It said the decriminalization of homosexual acts and recognition of rights in Navtej Singh Johar has not led to such consequences. The judges were also not convinced that such unions would render other statutes unworkable.

The bench acknowledged the difficulties in achieving a workable solution but was of the view that it cannot deny fundamental rights due to such challenges. It said the power of judicial review includes not just striking down laws but also issuing directions to remedy rights violations. The Court does not have to wait for legislative action, especially when rights of vulnerable groups are at stake. In conclusion, the judges utilized principles of progressive interpretation to read down discriminatory provisions and expand the scope of marriage equality. They issued detailed directions to extend marriage and allied benefits to LGBTQIA+ individuals while safeguarding the interests of all parties. The well-reasoned judgement balanced civil liberties with legal, social and institutional concerns – a true testament to the transformative role of the judiciary.

This landmark ruling sets the much-needed precedent of an inclusive society based on constitutional principles of equality. It will go a long way in securing rights of the queer community and fostering greater social acceptance. While non-discrimination is yet to be fully realized, the judgement has sown seeds for an equitable future where everyone can live and love with dignity. The Court has upheld the spirit of justice through this transformative and progressive verdict.

CONCLUSION

At the outset, it is evident that the institution of marriage in India has evolved significantly from its historical roots. Practices that were once entrenched such as child marriage, sati and denial of widow remarriage have been unequivocally condemned and outlawed. This establishes that marriage is a dynamic institution that must keep pace with the changing social ethos of inclusiveness, equality and dignity for all. It is also clear from the various perspectives shared in this case that there exists no universal definition of marriage. Different communities, religions and personal laws in India perceive marriage in diverse ways. As long as certain basic prerequisites are fulfilled under applicable statutes, a marriage is valid regardless of the presence or absence of other characteristics. This allows couples the flexibility to define the contours of their relationship while still availing of the legal benefits of a union.

A crucial takeaway is that the Constitution does not mandate a uniform concept of marriage or restrict the legislature’s role in regulating relationships. However, any restrictions imposed by the State must have a legitimate basis and not violate the fundamental rights of citizens. Specifically, the rights to life, liberty, equality, freedom of expression and dignity enshrined under Articles 14, 19 and 21 cannot be abridged due to one’s sexual orientation or gender identity. The deliberations have clarified that same-sex relationships and transgender identities are natural phenomena that have historically existed in India. They cannot be dismissed as so-called ‘Western imports’. When individuals from diverse social, economic and educational backgrounds provide accounts of their queerness in different parts of the country, it shows that this is not an urban phenomenon either. The denial of legal recognition to same-sex and transgender unions amounts to unconstitutional discrimination.

It is evident that substantive directives are necessary from the Court to address violations of fundamental rights, rather than just striking down laws. Positive obligations must be cast upon the State to emancipate the LGBTQIA+ community from the shackles of deep-rooted social oppression. Comprehensive legal reform is required to ensure equality, dignity and non-discrimination in accessing all benefits associated with marriage. However, the nuanced policy considerations involved in restructuring statutory frameworks are best addressed through consultative processes in the legislature and executive. In conclusion, a balanced approach is imperative. While protecting basic rights and rectifying clear violations, due regard must be given to the legitimate roles of the other organs of the State. The judiciary cannot assume the function of enacting comprehensive legal reforms but has to enable participatory and inclusive democratic governance in line with constitutional values of justice, liberty, equality and fraternity.