Why same-sex marriage matter must be decided by SC

The journey for same-sex couples from “the love that dare not speak its name” (as said about same-sex love by Lord Alfred Douglas) to exchanging wedding vows “till death do us part” has been both practically arduous and legally tumultuous.Nevertheless, the LGBTQ+ community has made progress in leaps and bounds towards incrementally realising their rights under the Constitution, pursuing their battles with courage of thought and conviction in action.The initial decks for consensual same-sex relationships were cleared with the Supreme Court in Navtej Singh Johar (2018) authoritatively striking down Section 377 IPC to the extent that it had criminalised consensual same-sex relationships.Hearings on the batch of petitions seeking legal recognition of same-sex marriage came to a close with SC reserving its judgment on the matter. It is pertinent to note important questions raised by the Constitution bench, not limited to the rights of the LGBTQ+ persons but essentially to how far the court of last resort will go to acknowledge as well as protect the rights of the LGBTQ+ community within constitutional contours. ShowBlurbsAfter SC in KS Puttaswamy (2017) elevating the right to privacy to a fundamental right and treating it as part of the right to life under Article 21, and in Navtej Singh Johar case, decriminalising consensual same-sex relationships, further holding that one’s sexual orientation is an intrinsic part of one’s individuality, privacy and dignity, thereby forming part of the fundamental right to life, legal recognition of such same-sex unions/marriages is only a natural consequence - that to deny the same amounts to a direct infringement of their all-encompassing right to privacy.Having categorically observed in Navtej Singh Johar that “privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation,” the only question would be whether a formal recognition of same-sex marriages is a subject that must be relegated to Parliament.Here, the crucial question is whether the legal recognition of same-sex marriages can at all be the subject matter of a policy decision. If the answer is in the affirmative, it would lead to uneasy consequences for then it would be open to the legislature to undo the judicial recognition of the right to unite in same-sex relationships, meaning thereby Parliament can do indirectly what cannot be done directly.On the other hand, if it is accepted that the legal recognition of same-sex marriages is only a natural consequence of their right to privacy holding within itself the right to assert and express one’s sexual orientation in the choices one makes in the private sphere of one’s life, the state would not be competent to make a policy decision in this arena.Also, viewed through the prism of the equality doctrine, one of the foundational blocks on which rests the constitutional edifice, and which ensures for every citizen the right to equality, coupled with the right against discrimination on any ground including sex (including sexual orientation), the State cannot deny to its citizens the right to legal recognition of marriages on the only ground of varied sexual orientation.The fact that there is a legislative vacuum surely cannot hold the court from placing the constitutional seal of approval on these marriages. And if it does, it would certainly be a watershed moment for transformative constitutionalism in India. ShowBlurbsOnce it is held that the fundamental right to embrace one’s sexual orientation is part of the fundamental right to privacy, it would be an antithesis then to make it dependent on the mercies of a majoritarian government, that is most likely to yield to perceived notions of social morality as against constitutional morality, the former feeding the lassitude of the law, while the latter is sprinting swiftly in action.The legal recognition of their marriages will not only guarantee them rights for adoption, surrogacy, procreation but will also ensure dignity to their children. It would be facile to view the union of same-sex couples from only the angle of physicality, and to ignore their need for an enduring bond that marriage is. The nature of marriage as an institution can be no different to them than to those having binary gender identities.The case of Obergefell et al vs Hodges (2015) before the US SC, where Obergefell wanted to be listed as a surviving spouse in the death certificate of his partner, Arthur, is a typical case to prove that same-sex couples have life goals that look beyond physicality, and relegating the recognition of such marriages to the democratic process of legislation, may often be a negation of fundamental rights.It may be a while before Parliament feels the need to legislate positively on the subject. Until then, as held by then Justice DY Chandrachud in 2020, “SC cannot afford to denude itself of its leadership as an institution in expounding constitutional values. Any loss of its authority will imperil democracy itself.”Viewed from this perspective, it must be said that any decision by the court in this regard, rather than being seen as contrary to the democratic process of law-making, is to be seen as bolstering the same. When new social insights are revealed that need constitutional protection through judicial intervention, the rights of citizens cannot be sacrificed at the altar of political inexpediency and legislative lethargy. The writer is Advocate, Madras HC.Illustration: Chad Crowe