So we have it from the Supreme Court of India in Supriyo Chakraborty. There is no fundamental right to marry, it holds. On that account, the Court decided that same sex persons cannot marry. In my view this is a wrong decision.
However, to the credit of the Court, it directed, unanimously, that same sex couples have to be protected from any harassment. The Court also passed directions to sensitise the authorities on this behalf and even directed the setting up of a committee to look into a number of issues. However, the flaw is fundamental which needs to be corrected, sooner than later.
To understand Supriyo Chakraborty, we need to contextualise it. In 2009, the Delhi High Court read down Section 377 of the Indian Penal Code (IPC) in Naz Foundation (Naz). That was set aside in Suresh Kumar Koushal by the Supreme Court in 2013, but ultimately upheld Naz in Navtej Singh Johar in 2018. Section 377 IPC, a law made by the British, that criminalised sex between non-heterosexual couples was punishable with 10 years imprisonment.
As a result, the LGBTQI communities suffered blackmail, torture, violence, harassment at the hands of the police, their lovers and families. A gay man, for instance, could not disclose his orientation for the fear of reprisals. This is what I heard from clients who began coming to the Lawyers Collective from 1997, when we took the decision to challenge the constitutional validity of Section 377 in 2001. Both Naz and Navtej Johar did not strike down Section 377. They held that adult non-heterosexual couples having physical relations with consent in private would not be criminalised.
In the meantime, even before Navtej Johar, the Court had held, in NALSA, that persons are entitled to identify their own gender. They may be born as males but if they want to identify as females or transgenders, they are entitled to do so. Pursuant to that, the Transgender Persons (Protection of Rights) Act was passed by Parliament which provides the procedure for changing one’s gender and protection against discrimination in diverse establishments, private or state.
It had also been held by the Court in diverse decisions that in India a person is entitled to autonomy, dignity, privacy and the right to choose their own partners to live with or in marriage. Obviously, after Navtej Johar, when one can have intimate relations with a person of any gender or sexual orientation, it is logical to assume that in that situation when a couple are having a physical relationship, they may prefer to develop a long-term relationship, including that of marriage. For marriage brings along with it a host of advantages for the couple, including succession in the field of inheritance, adoption of children, taking decisions in case of hospitalisation, and benefits from employers.
More than anything else, in the eyes of society, it sanctifies the relationship beyond reproach. A relationship less than marriage is not considered by society to have the same legitimacy. Without that legitimacy, LGBTQI communities are stigmatised. Consequently, LGBTQI communities began making strong demands for their right to marry. Petitions were filed in the Delhi and the Kerala High Courts which were all transferred to the Supreme Court where too fresh petitions were filed. It is in this background that the Court, in Supriyo Chakraborty, was asked to decide the right of recognition to marriage by the state of non-heterosexual couples
The human rights declaration
The fundamental core decision of the Supreme Court in Supriyo Chakraborty is that there is no fundamental right to marry in India. In arriving at this decision, the Court ignored the fact that India was an original signatory to the Universal Declaration of Human Rights (UDHR), the founding document of all human rights in the world. It is well known that the Indian Constitution was greatly influenced by the UDHR.
As a signatory country to the UDHR, legislation by Parliament and State Legislatures in India must be in accord with the UDHR. More importantly, courts in India have interpreted the Constitution and statutes in line with the UDHR and other international covenants.
Article 16 of the UDHR, 1948 provides that, “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family....” Under the UDHR, the right to marry is a human right. In the face of this can it be argued that it is not a fundamental right?
Critics would argue that the Indian Constitution does not provide for the right to marry explicitly. However, this ignores the Indian constitutional jurisprudence where the courts have interpreted constitutional provisions and enunciated new penumbral rights in a liberal and expansive manner.
The Supreme Court of India has read the right to be treated with dignity into Article 21 (a classical negative covenant on the state). It is on that basis, that positive rights, including the rights to education, food, environment have been evolved.
The Supreme Court has used the provisions of UDHR to elaborate rights under the Constitution. Thus, in the context of handcuffing and consequential torture contrary to Article 21 of the Constitution, in Prem Shankar Shukla, the Supreme Court referred to Article 5 of the UDHR stating that, “After all, even while discussing the relevant statutory and constitutional requirements court and counsel must never forget the core principle found in Article 5 of the Universal Declaration of Human Rights.” This was reiterated in Francis Coralie Mullin, which based on the concept of dignity stated,”It would thus be seen that there is implicit in Article 21 the right to protection against torture or cruel, inhuman or degrading treatment which is enunciated in Article 5 of the [UDHR]”. In Maneka Gandhi, the Supreme Court relied on Article 10 of the UDHR to read in principles of natural justice into the administrative process to state, “Hark back to Article 10 of the [UDHR] to realise that human rights have but a verbal hollow if the protective armour of Audi alteram partem is deleted”. Thus, it was eminently reasonable to develop the concept of the right to marry into Articles 19 and 21, especially because the right to intimate relations is now recognised in Supriyo Chakraborty itself. Surprisingly, the Court says that we cannot use foreign jurisprudence in the case of legal issues relating to marriage, despite the fact that in Surpriyo Chakraborty, the Court has introduced the doctrine of intimate association borrowed from the jurisprudence developed in the United States.
On transgender persons
The irony is that for transgender persons, the Court holds that marriage between a trans-man and a cis-woman or between a transwoman and a cisman is legal. That is correct. But there lies irony. It needs to be appreciated that according to the logic of the judgment, marriage is only legal between a man and woman, that is a biological man and woman. The Court has rightly made the leap from biological sex to gender, which is self-identified in accordance with NALSA. If the leap was possible for biological sex to self-identified gender, it is difficult to understand why a leap could not be made from biological sex to sexual orientation. After all, not recognising marriage for same sex couples is not only discriminatory against them. The unintended consequence of the judgment in the larger society is that the notion that same sex couples are “not fit for marriage” will be perpetuated. It now has the imprimatur of the highest court. It reduces them to second class citizens.
The sooner this wrong is set right the better it would be for society as whole. My message to my LGBTQI colleagues is that fighting involves falling several times before the ultimate victory. We fell after Koushal. But we fought and won in Navtej. Now, we need to get up and fight and win again, which we shall do.
Anand Grover is a senior advocate practising in the Supreme Court of India. He appeared in the Naz Foundation, Suresh Kumar Koushal, Puttaswamy, NALSA, Navtej Johar and Supriyo Chakraborty of the LGBTQI groups/individuals