Same Sex Marriage: Focus on constitutional issues. Everything else is noise

Much has been written about the rights of the LGBTQ community members to marry under the law. However, those who oppose such a prayer of the community are missing the woods for the tree.

Fourteen years after the case of Naz Foundation (2009), the LGBTQ community is again on the legal radar of the Supreme Court. The case of Supriyo @ Supriya Chakraborty and Anr. v Union of India, and other petitions, presently pending before the apex court, have sought legal recognition for same sex marriage in India. The case has not only drawn public attention, but has also brought out public ire. Much has been written about the rights of the community members to marry under the law. However, those who oppose such a prayer of the community are missing the woods for the tree.

Not About Culture, History, Family, Society

The issues in the present case are not about our “culture”, or “history”, or about threat to “the family structure”, or threat to the “society” at large. The petitioners have raised seminal constitutional issues which need to be debated, discussed and decided by the Apex Court. These issues are:

1. Are members of the LGBTQ Community to be treated as citizens or as a subject?
2. Whether the members have equal right to marry as the heterosexual majority does or not? (Art. 14 of the Constitution)
3. Do they have the right to form association, as a couple, under Art. 19 (1) (c) of the Constitution or not?
4. Since the case of Shafin Janhan v Ashokan KM and Ors, (2018), the right to marry was read into the right to life, under Art. 21 of the Constitution of India, do the members of LGBTQ community have the same fundamental right as the heterosexual persons or not?
5. Can the right to life be denied on the ground of sexual orientation of a person?
6. Do the members of the community have the right to live with “dignity” – an aspect spoken about in the Preamble of the Constitution –  or not?
7. As human beings, do they have the right to have a family or not?
8. Do they have the right to live with a sense of identity, with a sense of security, respect and privacy or not?
9. If homosexuality was legalised in the case of Navtej Singh Johar, (2018) was that to be the end of the road for the community members?
10. Or should we move forward and ensure the fundamental and Constitutional rights, which are available to the heterosexual majority, to the members of this community as well?
11. If the position of women and Dalits, or other weaker sections of our society, has improved, then why should the members of this community be discriminated against?
12. Ultimately, the issue is what is the status of this community in our society?
13. If the constitutional validity of a statute is being questioned, does the apex court have the power and a duty to interpret the law or not? Or should it abdicate its responsibility of interpreting the law in a purposive and beneficial manner so as to ensure the Fundamental and Constitutional rights to this community?

Those who argue that homosexuality is against our “culture” need to read our Puranic stories. In ancient India, sexual fluidity was accepted. Devdutt Pattanaik, in his book Shikhandi, dwells into this subject.

Even today, the transgender community members play an important role in our social life — at marriages and birth of a child. They are progressively being brought into the mainstream of our society: in the political, educational and economic fields.

False Narratives 

On the other hand, those who claim that same sex marriage would destroy the “marriage institution” only need to look at the other countries where this phenomenon is allowed. Neither in Sweden, nor in parts of United States, where same sex marriage is allowed, has it threatened the institution of marriage.

Similarly, those who prophesy that the members of this community would destroy the fabric of the society, need to only remember that homosexuality has existed since the Paleolithic Age. It continues to be a minority even now. A minority can never threaten the existence of the majority. All these are false narratives which should be brushed aside.

A Truly Uniform Civil Code Needed

Recently, the Constitutional Bench has opined that it would not like to go into the other issues, such as adoption and inheritance etc. For, these issues are covered by myriad Personal Laws. This view is certainly justified.

However, considering the fact that the Government is envisaging a Uniform Civil Code for the country, perhaps the Code would grant substantial rights of adoption and inheritance, etc. to the members of the LGBTQ community. This is more so, as India is a signatory to the Universal Declaration of Human rights, which recognises the right to marriage and family as human rights.

The need of the hour, in a postmodern world, is to move forward on the journey of liberalism. We cannot afford to hold on to antiquated ideas of sex and gender, or marriage and family. We need to remind ourselves that our civilisation values two important principles: “to live, and let live”, and Vasudhaiva Kutumbakam – the world is a single family. Moreover, the Constitution of India mandates a peaceful social revolution in order to place India amongst the liberal democracies of the world.

Justice RS Chauhan (Retd.) was Chief Justice of the Telangana and Uttarakhand High Courts. Views are personal and do not represent the stand of this publication.