By Abhijit Vadavalli

[Abhijit Vadavalli is a first year student of B.A. LL.B. (Hons.) at National Academy of Legal Studies and Research (NALSAR University of Law).]

Prefatory:

The archaic Section 377 of the Indian Penal Code 1860 criminalised homosexual sex, thereby criminalising homosexuality, among other forms of “unnatural sex”. In 2018, a five-judge constitutional bench of the Supreme Court read down this section, effectively removing any criminal barriers on homosexuality. [i] However, this judgment was hardly enough to make the State sensitive to the needs of the LGBTQIA+ community and grant them the same rights as any other heterosexual couple. However, decriminalisation must not be confused with the conferring of equal rights. There is much left to be done in terms of guaranteeing that the members of this community are even allowed by the State to marry or live together.
This can be seen in the circumstances of a writ petition filed before the Kerala High Court in the earlier days of January 2020. The solemnisation of marriage of the petitioner gay couple (identity not to be revealed to protect the larger interests of the couple) was neither recognised by the religious authorities nor allowed to get registered under the Special Marriage Act 1954 (“1954 Act”). [ii] The petition has been admitted by Hon’ble Justice Anu Sivaraman and notices have been issued to the Central and Kerala government. [iii] The petition in question will form the central part of the legal debate on the constitutionality of same-sex marriage in India.
There has been a wide coverage of this writ petition, ranging from LGBTQIA+ blogs to well established media houses, such as The Wire. Most do not delve into legal provisions in question or the extent to which there is an incompatibility between the judgments in question, and the impugned sections of the 1954 Act. Further, the articles fail to express clearly, the relief that is sought by the petitioners. [iv] This is a very conspicuous trend in the reporting of legal issues i.e. the numbing of the more intricate questions of law that tend to define the issues that are being reported. The analysis of this article will therefore delve into the merits of the writ petition filed and the claims that the petitioners make, along with analyzing the relevant law and the legal deadlock created by the interaction of conservative legislation with progressive case law.

Legal Analysis of the Judgment:

 

A.    Existing Precedent


It is impossible to analyse the legal rights of the LGBTQIA+ community without taking into consideration the landmark judgments that set the precedent for the community to claim equal rights. In the Navtej Singh Johar judgment, Section 377 was read down by the Hon’ble Supreme Court. [v] This judgment guaranteed the right to determination of sexual identity. Further, in NALSA v. Union of India, the right to determine gender identity was read into Article 21 of the Constitution, as an integral part of self-determination and individual autonomy. [vi] The purpose of these judgments was likely to create a precedent for members of the community to claim and protect their fundamental rights against the society and state that have consistently deprived them of their rights.

 

B.    Circumstances Leading to the Writ Petition and its Arguments


i.    Facts of the Case

The petitioners were two men who met in May 2018 and fell in love. They attempted to solemnise their marriage at a temple, but the religious authorities denied them the solemnisation and a certificate of marriage. Subsequently, they decided to approach the marriage from the avenue of a secular law, through the provisions of the 1954 Act. The petitioners had a secret marriage ceremony to avoid violence and social backlash. However, after the ceremony, when they tried to formalise their marriage under the Act, they realised that even this secular law was discriminatory. Although not expressly prohibited, the Act does not recognise a marriage between anyone but a heterosexual couple. This can be seen in the heteronormative overtones of the 1954 Act. The petitioners, aggrieved, filed the writ petition in question before the Hon’ble Kerala High Court. [vii]

 

ii.   Heteronormative Overtone

The first instance of heteronormativity can be noted in Section 4(c) of the Act. [viii] This section relates to the conditions to be fulfilled for a marriage to be solemnised. This clause prescribes a minimum age of marriage for the male and female members of a civil union. The use of strictly gendered pronouns excludes homosexual couples as can be seen in the instant case.

The heteronormativity of the Act is far reaching in many other ways. This can be seen in the use of gendered pronouns in certain schedules of the Act. The Second Schedule, which relates to the notice of intended marriage, requires the signature of the unmarried widower or divorcee, and widow or divorcee. [ix] The Third Schedule contains declarations that are to be made by the bride and bridegroom. [x] The Fourth Schedule contains the marriage certificate which explicitly genders the couple as bride and bridegroom. [xi]

 

iii.  Arguments of the Writ Petition

The writ petition in question argues that although the 1954 Act does not explicitly disallow a marriage between homosexuals, the heteronormative overtones of Section 4, and Schedules 2-4, essentially exclude homosexual couples from marriage. [xii] This writ petition is a good example of members of the LGBTQIA+ community using the aforementioned judgments to claim the rights that any other heterosexual couple would enjoy. The petitioners further argue that a restriction to marry for homosexual couples restricts their right to expression under Article 19(1)(a) of the Constitution, rendering the impugned parts of the 1954 unconstitutional, and therefore illegal. They place further reliance upon Article 19(1)(c) which guarantees the right to form unions or associations. In totality, the petitioners had submitted that Articles 14, 15(1), 19(1)(a), and 21 are violated by the impugned provisions in this Act. [xiii]

 

iv.     Pleadings of the Writ Petition

The writ petition pleads for the provisions of the Act that prevent the marriage of homosexuals be struck down to that extent as unconstitutional. Most of the reporting on this writ includes only this part of the prayer, and leaves out the rest of the prayer, which is most likely to impact the jurisprudence on the rights of the LGBTQIA+ community. They report that the petitioners pray for the provisions to be struck down to the extent that they bar same sex marriages.

 

The larger, more impactful, parts of the prayer of the writ petition succeed parts of the prayer that have been reported. These parts of the prayer call for a complete review of the 1954 Act and to set a binding precedent to read it in a way so as to include homosexual couples within its scope, effectively providing any homosexual couple the right to enter into marriage without having to move the courts. This is supplemented by another prayer that asks the court to declare that homosexual couples are allowed to solemnise their marriage under the Act. This would provide the explicit legal basis for the legality of same-sex marriage in India. Another minor part is the petitioner couple praying for a writ of mandamus to be issued to the respondents to allow the marriage between this couple, and to provide them with a certificate of marriage.

Conclusion:

Regardless of whether relief is passed in favour of the petitioner couple or not, the judgment delivered on this writ petition will set a precedent for the status of same-sex marriage in India. However, the reporting on this issue does not seem to capture the gravity of the situation in both legal and social terms. It must be noted that the writ petition itself has the potential to become one of the cornerstones of sexual jurisprudence in India, forming a logical conclusion to the thread of judgments and struggles of the community that attempted to depose the heteronormative nature of Indian civil and personal laws.
(The views and opinions expressed in this article are author’s own and do not necessarily reflect the official policy or position of the Legal Aid Society, Campus Law Centre, University of Delhi.)

[i]Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
[ii] “Gay Couple Moves Kerala HC to Strike Down Provisions of Special Marriage Act”, The Wire, available at: https://thewire.in/law/gay-couple-moves-kerala-hc-to-strike-down-provisions-of-special-marriage-act (Last accessed on February 07, 2020).
[iii] “Gay Couples Moves Kerala HC for Recognition of Homosexual Marriages Under Special Marriage Act”, LiveLaw,   available at: https://www.livelaw.in/news-updates/gay-couple-moves-kerala-hc-for-recognition-of-homosexual-marriages-under-special-marriage act-152046?infinitescroll=1 (Last accessed on February 07, 2020). Access to the original copy of the writ has been acquired from this article.
[iv]This can be seen by reading through most of the mainstream reporting on this writ petition.
[v] Supra note [i].
[vi] AIR 2014 SC 1863.
[vii] Supra note [iii].
[viii ]The Special Marriage Act, 1954 (Act No. 43 of 1954), s.4(c).
[ix] The Special Marriage Act, 1954 (Act No. 43 of 1954), sch.2.
[x] The Special Marriage Act, 1954 (Act No. 43 of 1954), sch.3.
[xi]The Special Marriage Act, 1954 (Act No. 43 of 1954), sch.4.
[xii]The copy of the petition can be accessed at: https://www.livelaw.in/pdf_upload/pdf_upload-369544.pdf (Last accessed on February 08, 2020).
[xiii] The contentions of the petitioners can be seen in the “Reasons” section of the writ petition.

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