By Anant Prakash Mishra
It was an evolutionary reposition for constitutional jurisprudence in India when the Supreme Court decriminalised homosexual intercourse between consenting adults in Navtej Singh Johar vs. Union of India. In an exquisitely written judgement, the five-judge constitutional bench engaged in a sundry discussion that ranged from the sociology of stigma and conformity to the right of privacy and constitutional morality.
The judgement is a breather for the LGBTQ community in India, who had for long faced social and state persecution due to the archaic colonial section 377 of the Indian Penal Code, forcing them to live in ignominy. Much was said in the judgement that is salubrious, but to secure the rights of the LGBTQ community in a true and meaningful sense, legal recognition of same-sex marriages should be the next step.
Recently, the central government categorically opposed the notion of same-sex marriages in the Delhi High Court. The problem is not just about the lack of a strong political will. A large chunk of Indian society also views same-sex marriages as anathema to their ideas of culture and society as a whole. The Prime Minister Narendra Modi-led BJP government has, time and again, resorted to Hindutva as a bulwark to protect Indian culture from being diluted by liberal and progressive ideas. However, here the question is not about popular morality but a matter to be examined from the lens of Indian constitutional philosophy.
At first, the contentions raised by the Centre need to be examined. It has argued that same-sex marriages are not rooted in the Indian family setup and are inconsistent with Indian culture, rituals, values, and so on. Taking the limited binary understanding of a “biological male” and “biological female”, the Centre reasoned against importing the western ideas into the Constitution.
Stating that Navtej Singh Johar and Puttuswamy judgement on the right to privacy in no way refers to giving legal sanction to same-sex marriages. The emphasis was on marriage being a “public concept” and an institution established on heterogeneous lines.
The Centre’s reasoning reflects an unhealthy majoritarian mindset that completely disregards the rights and autonomy of an individual. What is beyond understanding is the compulsive need of this government to behave as if it is a controlling parent. Just as a family tries to stop an inter-caste or inter-faith marriage citing social implications, the government, in this case, seems to stop same-sex marriages relying on some unfounded and pre-conceived notions.
Denying an individual the freedom and choice to marry a person of their choice is a question of fundamental rights and has grave constitutional importance. The Supreme Court has held in the case of Shakti Vahini vs Union of India that if the right to “express one’s own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness. When two adults marry out of volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so; and it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation.”
This judgement although delivered in the backdrop of Khap panchayats and honor killings indicates the constitutional right of a free choice and the right to marry as being a fundamental right protected by Articles 19 and 21.
Similarly, in the case of Shafin Jahan vs Asokan KM, the apex court left no stone unturned in recognising the liberty of choice and much-needed autonomy in making intimate personal decisions. Interestingly, both these cases were relied upon by the apex court in Navtej Johar itself and this emphatically establishes that there is a fundamental right to marry the person of one’s own choice.
The discourse on personal autonomy and identity has also been expanded very broadly in the Puttuswamy case. Therefore, the Centre’s argument suffers from a fallacy as it stems from a very selective reading of these judgements. A careful and combined reading of these landmark judgements will guide us to a constitutional path where the right of marriage can be extended to include homosexual couples as well.
The issue here is the restricted nature of this choice based on the grounds of the “sex of the other person”. A choice of partner, when denied on grounds of sex, is in contravention to the right of equality and duly attracts Article 15, which prohibits sex-based discrimination by the state among other things.
The other argument of morality and societal values when tested with the fundamentals of the Constitution and its core philosophy comes out as legally impotent. When the moral standards of the society are up against constitutional morality; the latter prevails. This particular position of law has become well-established after the Navtej Johar judgement, as it was unanimously accepted by all five judges.
Ours is a liberal Constitution with dynamic characteristics and it constantly needs to evolve. The constitutional evolution is necessary to continue the quest for being inclusive and egalitarian. Our constitutional jurisprudence and the whole domain of individual rights theory are going through a metamorphosis. The Constitution needs to have ample breathing space so that it does not give rise to contempt among its citizens.
Stagnancy, in my view, becomes a very sordid breeding ground. Therefore, rigidity in the matters of constitutional interpretations may at times lead us to outlandish results. The responsibility lies with the judiciary to rightfully interpret and expand the scope of individual rights. In the present case, the court can within its rights direct the government to make a law recognising same-sex marriages in India.
When compared globally, legal recognition of same-sex marriages does not look like an alien concept as there are about 29 countries where it is legally permissible. It is to be understood that, judicial philosophies seem to evolve. For example, the United States Supreme Court, in the case of Bowers vs Hardwick, 1986, upheld the legality of the statute of Georgia which criminalised “sodomy”. This decriminalisation of homosexuality took 17 years in the United States and finally in the case of Lawrence vs Texas, 2003, the court boldly recognised gay rights.
Finally, after 12 years in the case of Obergefell vs Hodges, 2015, the American Supreme Court ruled in the favour of giving legal sanction to same-sex marriages. Taking a lesson from the Supreme Court, we must ask ourselves as to how much time will we take on the same trajectory?
If we as a society sideline an individual’s rights and start dictating our narrative; the first thing we defeat is the vision of the founding fathers of our Constitution. The grand words written in the judgements of our constitutional courts would be reduced to mere poetry if we fail to secure the basic fundamental rights of our citizens.
What is the meaning of independence if the expression of love and relationships have to be practiced behind closed doors? Being with a partner of one’s choice is not an atrocious sin but a fundamental right. The real challenge here is not legal, but the liberation of the orthodoxy that lies within us!