The Supreme Court, in Supriyo v. Union of India, has referred the matter relating to legalisation of same-sex marriages to a Constitution Bench. Unlike the matter pertaining to decriminalisation of Section 377, which the Central government had left to the Court to decide, the affidavit submitted by it in the present case opposes such legalisation. The Centre’s stance has come under fire from sections of civil society, advocates, academics and scholars. Let us examine its line of reasoning.
The core of the Centre’s argument is that same-sex marriage does not find any recognition within Indian traditions, ethos, culture and the societal conception of the institution of marriage. It has been argued that marriage is a sacrament between a biological male and a biological female to form a holy union to conceive children. Consequently, it is argued that Parliament, and not the Court, is the right institution to debate and decide if same-sex marriages should be legalised.
The language of rights
Since it is unlikely that the Court will acquiesce to or reject the Centre’s stance without evaluating the same on its own merits, it is crucial to understand the foundational basis for this argument. Multiple authors have addressed the Centre’s argument through legal lenses, such as by saying that it is a duty of the Court to address the violations of fundamental rights which result directly from a non-recognition of same-sex marriages. Like in the Navtej Johar and Joseph Shine cases, where the Supreme Court faced questions of sexuality, autonomy, social equality and social legitimisation, the question of same-sex marriages too boils down to the competing interests of the rights of a society to conserve traditions with all their infirmities and the right of an individual to enjoy his constitutional freedoms with all his idiosyncrasies.
Arguing in the language of rights might give legitimacy to the content of the petition, but it side-steps the point pertaining to societal conceptualisations of the institution of marriage. Marriage is predominantly a social institution. The Centre’s stance, thus, finds a backing in four interrelated sub-arguments. First, the question of same-sex marriage has the potential to alter how we conceive a family — the building block of society. Most conventional definitions of marriage adhere to the Centre’s conceptualisation of the institution and generally identify marriage as a socially accepted union of individuals for procreation. While same-sex marriages are not a threat to this understanding, they demand a nuanced alteration/adaptation of it. This requires deliberation at a social level first.
Second, the current legislative framework promotes the conventional understanding of marriage. Marriages in India are administered through a complex legal structure with a religious genesis. They are consequently governed by the Hindu Marriage Act, 1955; the Parsi Marriage and Divorce Act, 1936; the Christian Marriage and Divorce Act, 1957; and Muslim Personal Laws which do not have any strict legislative framework. All marriage laws, except for the Special Marriage Act (SMA) of 1954, recognise marriages between a man and a woman. Parliament enacted SMA to facilitate inter-religious marriages. Therefore, the legislative intent behind the use of gender-neutral language in Section 4 of the SMA cannot be presumed, in and of itself, to be in favour of same-sex marriages either.
Third, as distinct from the constitutional morality adopted in the Navtej Johar case, which recognises consummation for purposes other than procreation, religious and societal morality still conceptualises intercourse as a procreative activity. This is why various laws pertaining to marriage mandate the consummation of marriage. For instance, Section 12 of the Hindu Marriage Act provides that where a marriage has not been consummated owing to the impotence of one of the parties, the said marriage is voidable.
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This also answers the logical question of whether a marriage subsisting between a couple unable to procreate is a challenge to the idea of a valid marriage. In the legal conception of marriage, procreation remains a basic requirement. The same can be gauged from the above-mentioned provisions, which make marriages voidable on the basis of impotence and lack of consummation. Consequently, the parties to the marriage would not be labelled as ‘divorcees’ but merely as ‘unmarried.’
A broader social context
Fourth, conventional conceptualisations of family and marriage are facing evolutionary challenges. The idea of live-in relationships is just as ideationally confrontational to marriage as same-sex marriages. Even though they are judicially recognised, live-in relationships are not equated to marriage under the law. The social acceptability of such relationships remains in a state of limbo. The apprehensions of the Centre regarding the conceptual alteration of the family unit, therefore, are not actually as regressively homophobic as they may seem prima facie. Instead, they are generalised to a broader social context. Much like live-in relationships, the issue of legal recognition of same-sex unions too requires a broader debate in society and the legislature.
It is not our case that the decisions of same-sex couples to reside together in a union do not deserve legal recognition. The rights issues are substantial and must be addressed immediately. Nevertheless, given the implications of recognising same-sex unions as a couple, the push to formalise the institution of same-sex unions must come from representative bodies such as Parliament.
G. S. Bajpai is the Vice-Chancellor at National Law University Delhi; Ankit Kaushik is an Assistant Professor at RGNUL, Punjab
