At last count, there were 9 marriage petitions pending in various Indian High courts. Collectively, these petitions mount a multi-faceted attack on various Indian marriage laws for their failure to provide for queer marriages, either expressly or implicitly. In this blog, I identify the specific laws under challenge and summarise the main grounds of those legal challenges.
II. The Laws under Challenge
Section 7(a)(1)(d) of the Citizenship Act, 1955 (‘CA’) permits foreign spouses of OCI cardholders, i.e., oversees citizens of India (those who have surrendered their Indian passports, and the children of such persons) to register as OCIs if the marriage has subsisted for 2 years and has been registered. One feature of the OCI card is that it serves as a lifelong visa for the purpose of visiting India; a feature not available to foreign nationals, who, generally speaking, must apply for a visa to visit. The Act does not specify that the spouses in question must be of opposite sexes and the petitioners who have been married in the US, seek a declaration that the impugned Section applies to queer marriages as well. Petitioners have argued for a literal construction of the Section which will have the effect of including queer couples.
The Foreign Marriage Act, 1969 (‘FMA’) recognises marriages solemnised between an Indian national and a non-national. The Act provides for such marriages to be registered which can then lead to other benefits such as being added to the passport of the Indian national, making it easier (and in some instance possible, like during the COVID-19 pandemic) to enter India. The Indian consulate in New York denied the petitioners, already married under US law, a marriage certificate under the FMA. The petitioners accordingly pray for a declaration that this Act applies to queer marriages as well.
The Special Marriage Act, 1954 (‘SMA’) is a secular marriage law in India providing a means to get married if parties belong to different religions or want to solemnise their marriage under a non-religious legal framework. The SMA while not expressly excluding queer couples, uses language which assumes a heterosexual marriage. For example, S4 lays, while laying down the conditions of a valid marriage, ‘between two persons’, lists the minimum age of a male as 21 and the female as 18. The petitioners sought for their marriage to be registered under the Act and were refused registration on account of being a queer couple. Accordingly, they seek a declaration that either the SMA be read to apply to queer couples as well or the offending Sections of the Act which limit marriage to heterosexual couples be declared unconstitutional.
The Hindu Marriage Act, 1955 (‘HMA’) provides for a marriage between two Hindus. Section 5 of the Act provides that one among the many conditions for a valid marriage is that the bride must be at least 18 years old, and the bridegroom must be at least 21. The petitioners pray for a broad reading of this condition to include queer couples.
Finally, the petitions seek a declaration that the right to same-sex marriage is a fundamental right protected by Articles 14, 15, 19, and 21, regardless of the sexual orientation and gender identity of the parties.
III. The Grounds of Challenge
Argument from the Protection of Life and Liberty –Life and personal liberty are fundamental rights protected under Article 21 of the Indian constitution. Three distinct arguments can be culled from Article 21. Over the years, the SC has interpreted the life and liberty package to find specific rights worthy of protection within it.
- The right to privacy is one such right (Puttaswamy SC 2017). The argument from privacy states that the right to marry is protected by the element of autonomy inherent in the privacy protection (Navtej SC 2018). This autonomy in turn provides for sovereignty over body, expression of self-determination, and the choice of a sexual partner (also in Navtej SC 2018).
- Further, the argument from dignity states that the right to marry a person of one’s choice is a part of the dignity guarantee of Article 21(Puttaswamy 2017 SC; Shakti Vahini SC 2018).
- Finally, an argument from personal liberty remains to be made. The argument is that the right to marry a person of one’s choice ‘forms the essence’ of personal liberty protected under Article 21 (Puttaswamy 2017 SC; also, Obergefell USSC 2015; Shafin Jahan Sc 2018).
Argument from Article Free Speech and Expression– Freedom of speech and expression is a fundamental right available to citizens under Article 19(1)(a) of the constitution. The Supreme Court has held explicitly that the right to marry is protected under Article 19 (Shakti Vahini 2018; Vikas Yadav 2016; Asha Rajan 2017). Further, Navtej held that the freedom of speech and expression includes the choice of a sexual partner. The expression of these choices through marriage therefore must follow. Failure to allow this would violate the holding of the SC in Navtej.
Argument from Non-discrimination (sexual orientation) – The Indian constitution guarantees freedom from sex discrimination. Behind every sexual orientation discrimination is sex discrimination. Therefore, freedom from sexual orientation discrimination has now been accepted to be encompassed in the sex-discrimination guarantee.
The fundamental right to equality and equal protection under the law requires that queer marriages be recognized by the law and be eligible for the same benefits as heterosexual marriages. The argument from non-discrimination provides that there is no intelligible difference between the relationship of an opposite-sex couple and a queer couple. The ability to reproduce, for argument’s sake, is a not a sine qua non of a valid or legitimate marriage. This argument, of course, ignores the various ways, including biological, that queer couples can become parents, but it does attack a basic and simplistic assumption forwarded to deny queer marriage. As there is no difference between these two types of couples, there is no constitutionally defensible reason for denying queer couples a marriage right.
Argument from Non-discrimination (sex)— the argument is that the non-recognition of queer marriages violates the sex discrimination protection of the constitution (Article 15) because it denies the right to choose a spouse based only on the sex of the choosing party. Further, failure to sanction marriages which go against stereotypical expectations of gender fall afoul the sex discrimination protection (NALSA SC 2015 and Navtej SC 2018).
The non-discrimination arguments also demonstrate that the failure to be married results in non-access to a variety of other privileges. For instance, it is the spouse who becomes eligible for pension benefits upon the death of pensioner. Even seemingly routine things like proving residence can become legally difficult if the relationship is not recognized and property is not co-owned/co-leased.
Argument from International Practice–This argument calls on the court to follow international practice. Internationally, courts have recognised the obligation of the State to register marriages that have been lawfully performed elsewhere (held in Obergefell US SC 2015; Yossi-Ben Ari 2006 Israel SC).
Argument from Religious Freedom and conscience—this argument states that there is no bar in Hindu religion on queer marriage and therefore a failure to recognize of the same would be a violation of Article 25(1). Right to choose a marital partner is a fact of the freedom of conscience.
Argument from domestic practice— This argument calls on the court to take cognizance of domestic practice and follow suit. The Madras High Court has held that a marriage between a Hindu man and Hindu transwoman is valid under the Hindu Marriage Act; the court interpreted the word ‘bride’ used in the Act to refer to not only ciswomen but also transwomen. (Arun Kumar & Sreeja; Mad HC 2019)
Argument from transformative constitutionalism—This argument provides that the constitution is a living and dynamic instrument as recognized in Navtej and Puttaswamy and must evolve with time with the court being a ‘constitutional invigilator’.
The petitions are Zainab Patel v UOI (Del HC); Nibedita Dutta v UOI (Del HC); Nikesh PP v UOI WP (C) 2186/2020 Ker HC; Abhijit Iyer Mitra v UOI WP (C) 6371/2020 Del HC; Vaibhav Jain v UOI WP (C) 7657/2020 Del HC; Dr Kavita Arora v UOI WP (C) 7692/2020 Del HC; Udit Sood v UOI WP (C) 2574/2021 Del HC; Joydeep Sengupta v UOI WP (C) 6150/2021 Del HC; Mellissa Ferrier and Anr v UOI and Ors WP (C) 13206/2021 Del HC