Sanskari cloud over Rainbow of Rights

Anand Grover. Credit: Special Arrangement

Ever since the consensual sex between adult individuals in the LGBTQI communities in private was decriminalized, firstly in the Naz Foundation (Naz) case by the Delhi High Court and then finally in Navtej Singh Johar (Navtej) case by the Supreme Court, the legitimate expectation was that recognition of marriages of non-heterosexual couples would follow, ensuring their equality with heterosexual couples on this count.

Why should non-heterosexual be denied such recognition? After all, if heterosexual couples want to settle down and get married, because they are ready for long-term commitment, seek stability in a relationship, aspire for financial security and willing to raise children, why should non-heterosexual couples not want the same for them too?

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After waiting for nearly four years since the Navtej case, they decided to approach the courts again, first the Delhi High Court and now the Supreme Court.

Their demand is very simple. They argue that the State, by not recognizing non-heterosexual marriages, denies their constitutional rights to equality under Articles 14 (equality and equal protection) Article 15 (non-discrimination), Article 19 (1) (a) (freedom of speech and expression) and Article 21 (dignity).

Credit: DH Graphic

In response, the Union Government, in its affidavit, has argued that under Indian laws, customs and traditions, marriage is a ‘sacrament’, ‘a holy union’ between a biological male and a biological female; that is the union which can beget and rear children. It has argued that if any change has to be brought, it has to be done only by Parliament and not by the Court.

The contention about marriage being a sacrament is easily disposed of as the law allows divorce. Thus, it is no longer a sacrament.

The issue of raising children is also a non-starter as, apart from the fact that a large number of heterosexual couples do not have children, non-heterosexual couples can adopt children or have children through surrogacy.

The contention of the Central Government of marriage being a ‘holy union’ only between biological male and biological female is based on notions of sexuality, sexual orientation and gender identity, which has radically changed not only around the world, but also in India.

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In the Naz case, the Delhi High Court upheld the contention of the petitioners that expression ‘sex’ in Article 15 includes sexual orientation. The implication of this was far reaching. This was upheld in the Navtej case. This implied that there can be no discrimination on on the grounds of not only “biological sex”, but also “sexual orientation.”

This aspect was further developed in the NALSA (the transgender decision) case by the Supreme Court, which held that individuals can choose their own gender, as it is their autonomous right to do so. The State cannot dictate what one’s gender should be. This means that if I am born as a biological male but I want to identify as a woman, I am entitled to do that because it is my own private autonomous decision to choose my gender. This is now recognized in the Transgender (Protection of Rights) Act.

Thus, once it is accepted as a matter of law and right that persons can choose their gender, then gender is the more appropriate parameter for several things, including marriages. Therefore the argument on the ground of “biological sex” vanishes into thin air.

The more serious issue is that a large number of non-heterosexual couples are sought to be excluded from having their marriage recognized in law only because they are not heterosexual. Their exclusion is an affront to our constitutional values. It is also not in sync with our commitments under international law, which recognizes that all persons have a right to marriage and found a family. The Supreme Court itself has recognized that the concept of marriage is changing in accord with our constitutional values. From only being a heterosexual unit, it is now conceived of union between two men, two women, two transgender persons and different permutations or combinations as one can envisage.

A troubling issue with the state of affairs today is that because non heterosexual marriages are not legally recognized, the LGBTQI status is stigmatized, and the family pressure to marry persists, large number of closeted gay men (and to a smaller extent closeted lesbian women) enter into unhappy heterosexual marriages and eventually get into depression and ill health. The sufferers in the relationship are both the partners. This is more than sufficient reason to allow the recognition of non-heterosexual marriages.

There is no reason to discriminate against non-heterosexual persons and deny them the right to have their marriages recognized.

(The writer is a Senior Advocate practicing in the Supreme Court. He argued the Naz Foundation case in the High Court and the NALSA and the Navtej Johar case in the Supreme for the petitioners)