Ensure marriage rights for the queer

Marriage as a social institution is significant in recognising the rights of the people who enter into a lawful civil union. The institution must adapt itself to changing times to ensure the growth of society and that it is not stagnant and constrained by age-old constructs. The Supreme Court, in a majority verdict in Supriyo vs Union of India, ruled against the constitutional validity of same-sex marriages.

The judgement comes as a major blow to the expectations of the queer community and is one of the most anticipated judgements of the year. They will now have to wait for Parliament to decide on the conferment of marital rights to the queer community. The transformative role of the Parliament and a constitutional obligation of the Government of India to grant legal status to same-sex marriages with significant changes in the socio-legal fabric of the nation cannot be overemphasised.

Historically, the role of Parliament has been transformative. From banning the practice of Sati to the reformation of the Hindu Marriage Act, the Parliament has ensured that, with the changing legal landscape, the laws of the nation also keep evolving. Recognising samesex marriages will be followed by subsequent changes in laws such as the Special Marriage Act, the Hindu Marriage Act, etc. As Justice Chandrachud opined in the minority judgement, the principle of updating construction must be applied to the Special Marriage Act to expand the meaning of the existing words for incorporating samesex marriages within its ambit.

For example, there is a need to incorporate an inclusive definition of queer couples in Section 2 of the Hindu Marriage Act.

These changes will ensure that the ideals of a transformative constitution, a theme that is present in many of the landmark cases such as NALSA vs Union of India and Navtej Singh Johar vs Union of India, are truly realised. Further, the fulfilment of constitutional obligations emanates from an expansive reading of Articles 14, 19, and 21 of the Indian Constitution (also called ‘the Golden Triangle’). This ensures that fundamental rights are constructively granted to the queer community.

The obligation of the Parliament to recognise same-sex marriages also stems from the nation’s commitments to international conventions. Article 51(c) of the Indian Constitution places a duty on the State to duly observe international law and treaty obligations. There is evidence of countless instances of transgender people facing violence and harassment due to the denial of a legitimate marital status. Article 5 of the UDHR prohibits cruel, inhuman, and degrading treatment of any person. Juxtaposing this in the Indian context raises fundamental questions about the need for an extension of constitutional guarantees to the queer community, including the right to marry.

The principle of non-discrimination in Article 2(1) of the ICCPR prohibits the State from making distinctions of any kind, including the sex of an individual. Article 17(1) of the ICCPR forbids unlawful interference with a person’s privacy and attacks on his reputation.

In India, discrimination towards the queer community is not only based on their sexual orientation but on their expression as well. Thus, legally recognising marriage between same-sex couples is bound to have a positive impact on the social perception of queer people. Being a signatory to both the aforementioned International Conventions, India is obliged to ensure that the fundamental human rights of the queer community are recognised by the law and they are not subjected to social exclusion.

While dogmatically rooted heteronormativity hinders domestic legal development and goes against the spirit of the constitutional principles of equality, non-discrimination, and the right to privacy, the Parliament of India has a unique opportunity to create history in the South Asian landscape by granting constitutional validity to same-sex marriages. Such conferring of rights ensures that India fulfils its constitutional obligations, which emanate from the Golden Triangle of the Constitution as well as various international conventions. It is hoped that the next session of the Parliament will bring forth positive outcomes, and India will take a huge leap in realising the ideals of a liberal and evolving nation.

(The writers are students of Dharmashastra National Law University)