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Is it the duty of the government to defend changing notions of “social standards” and “cultural ethos” with regard to same-sex marriages rather than to protect constitutional morality, asks Arvind Narrain

More than 18 petitioners from the spectrum of the LGBTQI community in India have argued that the country’s current marriage laws are unconstitutional. They claim that the laws are unconstitutional because it bars LGBTQI people from both the institution and the advantages of marriage. The Supreme Court’s three-judge panel presided over by Chief Justice Chandrachud, noted that the case was of seminal importance and referred it to a constitutional bench of five judges. The petition will be heard on April 18.

Among the petitioners are several young LGBTQI professionals who are courageously demanding the right to same sex marriage. The petitions of gay couples Supriyo Chakraborty and Abhay Dange, Utkarsh Saxena and Ananya Kotia, as well as lesbian couples Kavita Arora and Ankita Khanna and Aditi Anand and Susan Dias, demonstrate that for them the right to marriage is about right to express their love. The petitioners also include well-known transgender activists Akkai Padmashali, Zainab Patel, Uma Umesh and Vyjayanti Vasanta Mogli, gay activists Nithin Karani and Harish Iyer, queer and lesbian activists Rituparna Borah, Chayanika Shah, Maya Sharma and Minakshi Sanyal. Intersex activist Gopi Shankar M is also among the petitioners.

The petitions represent India’s diversity because the petitioners come from all corners of the nation and represent all facets of the LGBTQI community. The petitioners are contesting a number of rules that keep them from enjoying the advantages that marriage confers. The Special Marriage Act is being contested by eleven of the petitioners, the Hindu Marriage Act by two, the Foreign Marriage Act by three, all marriage laws by one, and one which challenges the Citizenship Act’s interpretation by the Union of India, which bars same-sex couples from qualifying for OCI status.

The heart of all the petitions is the reference to the equality principle. The petitioners contend that there is no legitimate constitutional justification for barring LGBTQI people from the advantages of marriage. The petitioners list a number of privileges from which they are denied access because of their sexual orientation or gender identity, such as the ability to establish joint bank accounts, file joint income tax returns, name one’s spouse as an insurance beneficiary, and make medical decisions for someone they care about. They contend that if LGBTQI people are denied rights granted by the law to heterosexual married couples, then equality under the law is unattainable.

Additionally, the petitioners claim that the right to marry is about the right to self expression. According to the moving words of Justice Leela Seth, “what makes life meaningful is love,” and marriage is one way society recognises the right to love. The petitioners contend that disallowing them from participating in one of the most significant and life-altering decisions a person can make denigrates their very humanity.

The petitioners are also contending that what is at stake in this prohibition from getting married is the constitutionally protected value of dignity. Marriage confers societal recognition of a relationship and counters the demeaning of LGBTQI relationships as less valuable than a heterosexual marriage.

The petitioners’ arguments are supported by the Supreme Court’s newly developed jurisprudence. The court held in Puttaswamy vs Union of India that “the sanctity of marriage, the liberty of procreation, the choice of a family life, and the dignity of being” are issues that “every individual” should be concerned about. The quest for pleasure is based on individuality and respect for others. Both are crucial components of privacy, which does not distinguish between people’s birthmarks.

In Navtej Johar vs Union of India, Judge Chandrachud declared that, ‘the constitutional principles which have led to decriminalisation must continuously engage in a rights discourse to ensure that same-sex partnerships achieve full fulfilment in every facet of life. Same-sex couples cannot be discriminated against by the law. In order to attain equitable protection, it must also take proactive measures.

The court found that Article 14 does not limit the term “person” and its application merely to males or females in NALSA vs Union of India. Hijras/transgender people who do not identify as either male or female fall under the definition of “person,” making them eligible for legal protection under the law in all areas of state activity, including employment, healthcare, and education, as well as the same civil and citizenship rights as any other citizen of this country.

The promise of the Constitution is starting to come to fruition as the values of the Constitution are being applied to the lives and loves of LGBTQI people. It is, however, disturbing to see how the Union of India has responded to these significant emancipatory changes that have their roots in both the Constitution’s text and the Court’s interpretation of it. According to the Union of India, it is the legislative body that “reflects the collective wisdom of the nation” and that “regulates, permits, or forbids human relations” based on cultural ethos, social standards, and other elements defining proper human behaviour.

This idea that the government should defend “cultural ethos” and “social standards” is utterly false. The legislature’s job is to root its actions in the basic morality of the Constitution, not to defend fluctuating concepts of “social standards” and “cultural ethos,” which have in the past been used to defend caste discrimination and customs like sati.

The Government, which is sworn to ‘bear true faith and allegiance to the Constitution of India’, should be cognisant that they are obliged to give meaning to the promise of the Constitution and not deny constitutional rights based upon vague and arbitrary conceptions of ‘cultural ethos’ or ‘social standards’. Constitutional morality, as Babasaheb Ambedkar stated in the Constituent Assembly, “is not a natural emotion” and that it “has to be cultivated”. For Ambedkar, democracy in India was a “top dressing” on “Indian soil which is essentially undemocratic”.

Babasaheb Ambedkar’s argument is that Indian society needs to be democratised. Dalits, women, and LGBTQI people’s rights are restricted by a caste-based and patriarchal societal structure. The Union of India has failed to recognise this aspect of its constitutional responsibilities. The Union has decided to ignore the reality that fellow citizens aspire to realise their fundamental rights and also desire to transform a patriarchal society. It is only in the transformation of ‘social standards’ and ‘cultural ethos’ that the Constitution begins to matter for all its citizens.

(The author is a lawyer & writer based in Bengaluru. He is the co-editor of Law like love: Queer perspectives on law.)