Introduction:
To be able to love is a matter of privilege. The notion of living a normal life remains a far-fetched dream for many. Exercising one’s rightful choice without deterrents is largely dependent on the society the individual is born into.
It is the essence of liberty to respect individual choice, as enshrined in the Preamble of the Indian Constitution. A new dawn of personal liberty was thus awaited in India after an anti-sodomy law was abolished. The abrogation of this colonial law, set up by Lord Thomas Babington Macaulay, was greeted with joyous cheers.
While this was a monumental step[1] towards creating an environment to accept the LGBTQIA+ community, and further respecting an individual’s choice, various issues remain, thus preventing effective inclusion. Homophobia, binary gender classification, societal taboos, and marital normativity, are not just seemingly fancy words; they are some of the needles in the haystack of numerous issues that queer people face, among which daunting stories often emerge.
Source: [Hindustan Times]
State of Affairs:
Source: Times of India
While the determination of one’s sexual orientation has been realised, LGBTQIA+ individuals are still unable to marry and create their own families. In addition, LGBTQIA+ couples have no access to rights that heterosexual couples are entitled to upon marriage, such as succession, maintenance, pensions, etc.
It’s not all that bad everywhere. The Open Letter to the Chief Justice of India from Teens of India[2] talks about certain sects of society embracing this rainbow of choices, accepting individuals who wish to proclaim their visibility. The various Transgender Rights Movements in India strive to seek justice and humanity. Various activists and prominent petitioners actively seek the recognition of same-sex marriages in India.
However, the criticism that arises due to embracing anachronistic societal and cultural norms is widely ignored by many. The society embodies the LGBTQIA+ Community and their choices as open secrets. Their very existence and purpose are stigmatised as social taboos. We live in a heteronormative society, one with preconceived, ancient norms and biases that are detrimental to the total inclusion of the queer community.
It is also often considered that arguments raised by various members of the LGBTQIA+ community, on the topic of marriage specifically arise from revolts engendered by elitists. Statements have been made against the movement towards legalising same-sex marriage.
Source:The Hindu
This brings us back to the very beginning of this article.
To be able to love is a matter of privilege. The privilege here is to have one’s choices and desires align with what is outlined by orthodox customs and norms.
The notion of living a normal life remains a far-fetched dream for many. In India, where the promotion of a lawyer to the Supreme Court was exclaimed as repulsive because of their preferences, one can only fathom the peculiar expositions that predate the democratisation of the institution of marriage.
To be able to exercise one’s rightful choice without deterrents is largely dependent on the society the individual is born into. Every Indian, including those who identify with the LGBTQIA+ Community, is entitled to equal citizenship, equal status, and individual liberty. Article 21 has been interpreted by the court in multiple instances to embody the right of an individual to marry who they want. However, this choice cannot be legally exercised by a queer individual due to prevalent personal laws and marriage acts.
Assertion :
Source: Time
Marriage is considered one of the most basic institutions of human life across different societies. Marriage, or the Right to Marry, is something that is not explicitly stated in the Constitution of India. Marriage and Divorce are subjects stated under Entry 5 of the Concurrent List in the Seventh Schedule of the Constitution of India. [3]
Same-sex marriages have been defined in multiple articles, as the union of two individuals of the same gender. This is where the reader must be made aware of the distinction that sex is biological, whereas gender is societal. While sex or sexuality is biologically and physiologically characterised, society characterises gender. These terms are not interchangeable. It is extremely restrictive of the choices and identity of an individual.
Bulletin and Legal Preview:
Source: Indian Express
On April 18th, 2023[4], a five-judge Constitution Bench headed by Chief Justice of India, DY Chandrachud heard arguments from various petitioners, as well as the Union Government and various religious and social organisations.[5] Various counter arguments were raised, stating “judicial travails”, “attacks on the conventional family system”, and “adoption of children into families built by same-sex couples and impending psychological effects”.
However, it is significant to say that the plight of various same-sex couples, and by large, the members of the LGBTQIA+ community, is something that these groups do not deem important enough to be taken into cognizance. The concept of self-actualization was deemed an essential component of freedom of expression in Article 19(1)(a) of the Indian Constitution in Naveen Jindal v. Union of India, is a strong basis for the legalisation of same-sex marriages. [6]
In a religiously pluralistic country like India, marriage is largely governed by personal laws. [7] The Hindu Marriage Act of 1955, enacted just a year after the Special Marriage Act of 1954, focuses on Hindu Marriages, their registration, nullity, etc.
The Hindu Marriage Act refers to marriages between “any two Hindus”. This led to petitions seeking recognition of such marriages involving the LGBTQIA+ community.
As part of a separate petition [8], Vaibhav Jain and Parag Mehta argued that under the Foreign Marriage Act, they deserve to get their outside-Indian wedding registered in India.
According to reports, in an affidavit filed in the Delhi High Court, the Centre said that personal laws recognise only heteronormative marriages, and any interference in them can be a potential cause of havoc.
Henry Sumner Maine first introduced the Special Marriage Act of 1872, which was an act
to provide for marriages in “certain cases” [9]. It sought to provide a form of marriage for those who do not profess certain religions.
It will prove fruitful to review and possibly reform the Special Marriage Act of 1954 [10], as it is free from the ambit of personal marriage laws.
Section 15(a) of the Special Marriage Act of 1954, defines marriage as occurring between “husband and wife”. However, considering that gender roles need not be defined in a same-sex relationship, the word “spouse” can be substituted in Sections 15, 22, 23, and 27.
As part of the Special Marriage Act of 1954, Meghna Mishra and Tahira [11] filed an application in which they sought to declare the provision requiring a “male” and a “female” for the solemnization of a marriage unconstitutional.
As part of the plea, the court was also urged to declare that the Special Marriage Act applied regardless of gender or sexuality by reading down restrictions on the same.
Marriage, while not a fundamental right, is more than just a union for “procreation” and “recreation” [12]. It is an institution that can hold different meanings and eminence for individuals. It is an institution that shouldn’t be based on orthodox societal norms but on evolving human beings. Justice must be served to the oppressed, and the voices of all those who call for equality must be heard.
The way forward:
Source: The Leaflet
“Same-sex marriage is a matter I leave to the wisdom of the country’s people. Parliament is a reflection of the people’s ideas”, as said by Mr. Kiren Rijiju, former Law Minister. [13]
There is a long, difficult path to equality. Everyone is equal before the law, irrespective of all dividers, which is what the court aimed to testify; by ruling that discrimination based on sexual orientation is a fundamental violation of rights. In an India that abstained from voting for LGBTQ rights at the UNHRC, it can be seen that equality before the law does not necessarily mean equality of the law.
An idealistic yet somehow implausible future for India would be to review the Special Marriage Act of 1954, to include this socially and culturally marginalised kaleidoscopic community.
To be able to love is a matter of choice.
The notion of living a normal life is finally a reality.
To exercise one’s rightful choice without deterrents is largely dependent on the individual’s preferences.
Article by:
Smriti Sivakumar,
Vice-President,
PES MUN Society, RR Campus