India passed the Special Marriage Act 1954 (hereinafter the Act 1954) to allow a special form of marriage in explicit cases to register and separation permitted within the rules. It is fathomable that marriage has two functions. First, it gives individuals rights and safeguards the interests of life partners. The statutes, which are functioning, have designated privileges only to married couples and not to non-heterosexual couples. There are advantages in favour of married couples, starting from joint adoption by a couple, right of access in medical emergencies, and other employment benefits just based on marriage. The rules of succession under various laws of marriage, the assets shall be inherited by the deceased spouse, but the queer spouse will not have the right to inherit until a will not be executed against their name.
I am What I am, take me as I am
The primary issue in the Act 1954 is section 4(c), where the condition is limited to cis-genders above 18 years. On this subject, a petition reached the apex court with an issue that LGBTQIA+ are permissible to marry as their right remains ignored in the nation; the survey conducted in 2023 is an example of that, where 31 per cent of people strongly disagreed to legalise the same-sex marriage opposite to just 28 per cent favoured for their right.
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The petition for the right to marry became essential due to the passing to nullify section 377 IPC 1860 by the Supreme Court of India led by Justice Dipak Misra (Retired). There, the bench stressed that the natural identity of an individual is treated as essential because punishment by law is an obsolete idea, and idealism affects the kernel identity of an individual. When the identity is affected, the intrinsic identity encapsulated with values of privacy, choice, freedom of speech and expression gets crushed. They referred to the NALSA decision, where the grounds of sex referred to in Articles 15 and 16 include discrimination based on gender identity. The expression is not limited to the sex of Male or Female; it also consists of those who don’t consider themselves within the binary. Furthermore, the Privacy decision by Justice Chandrachud (Retired) stated that sexual orientation is an essential component of rights guaranteed under the constitution, which aren’t formulated based on the favour or acceptance of majoritarian.
The decision in favour of accepting the sexually marginalised to express their identity requires them to live with their partner legally in the eyes of the law. In their submission, the Right to Marry is in connection with the conflict of personal laws with fundamental rights. They referred to Articles 14, 15, 19, and 21, including Article 25, giving the freedom to practice, propagate, and profess their religion, subject to public order, health, and morality.The pivotal constituent is Freedom of Religion incompatible with the rights of Queer.
The decision is known as the Triple Talaq case in 2017. The Attorney General of India argued personal laws decided within the overarching goal of gender justice, and the bench declared the act unconstitutional without being associated with sex discrimination. In the dissenting order, Judges Jagdish Khehar and S. Abdul Nazeer reiterated that personal laws have constitutional protection, where judicial interference is permissible only within the parameters of faith given under Article 25. In addition, the Bombay High Court, while hearing the constitutionality of the Hindu Bigamous Marriages Act 1946 in 1951, the argument of the petitioner was from the perspective of Article 13(1) in Part III of the constitution, which states all laws in force before the commencement of the constitution is inconsistent within the provision of this part, to such inconsistency is void. When the bench examined, they brought attention to the “laws in force”, where only those passed by a legislature or competent authority of India before the commencement of the constitution, the personal laws exempted from scrutiny. The personal laws were untouched except for that provision, where future legislatures were permitted to amend and change them towards a common and uniform code. They even highlighted Entry No. 5 of the concurrent list; powers are with legislatures to pass laws that affect personal laws.
Even with the legitimate power rendered by the legislature, Justice Ravindra Bhatt (Retired), writing for the majority, addressed the Act 1954 wasn’t trying to classify between heterosexual and non-heterosexual couples. Instead, they attempted to classify heterosexual couples from different faiths, and the exclusion of non-heterosexuals wasn’t a conscious choice of the parliament in the enactment. It came out due to epistemic limits, where section 377 of the Indian Penal Code 1860 is an example, and the differentia in the Act 1954 doesn’t concern either of the couples. The use of epistemic limits is inaccurate, presuming the minds of the parliamentarians sitting in the 1950s to legitimise present-day discrimination. In the decision to consider section 377 of IPC 1860 unconstitutional, the bench could have also used a similar logic, where the Imperative Legislative Council could not have known sexual intercourse amongst non-heterosexual relationships, where human dignity and autonomy of an individual is an essential characteristic.
Marriage as Rights
The decision by the majority, while hearing the right to marry, declared that the queer couple has no right to get married, and marriage hasn’t been recognised as a fundamental right in the constitution. A couple belonging to different castes or religions will not have the right to get married. The understanding is against the thought of Dr Bhimrao Ambedkar, where the annihilation of caste is possible through intermarriage. A government at any time can prohibit a class of intercaste marriages, and denying the right to marry their partner for queer couples affects their right to live as equal citizens given in the constitution. The solution proposed, whether as a Uniform Civil Code or Secular, is a stick to beat religious minorities as they are not sufficiently focused on changing the aspect of gender discrimination.
(The author works as a Researcher and Policy Associate at the Council for Social and Digital Development, Guwahati. All views and opinions expressed are author’s own)