The Supreme Court of the United States’s (Scotus) declaration that state laws not permitting same-sex marriages were unconstitutional has taken the march for the rights of the LGBTI communities in the US further. Earlier, in Lawrence vs Texas, the court held that the criminalisation of intimate homosexual relations violated constitutional protections. Following that, the court struck down a federal law not permitting same-sex marriages. Like the judgments following Lawrence, Obergefell vs Hodges is not only inspiring but also instructive for us in India, especially the courts.
The Scotus judgment is based on four principles of law. First, autonomy — all individuals have the right to decide what to do with their own lives. Second, that the right to liberty also carries with it the right to marry. Third, the right to marry, not conditioned on the commitment or capacity to rear children, is fundamental, as it supports individuals’ commitment to each other, protecting the right to enjoy intimate association and safeguarding children, marriage being a keystone in the nation’s social order. On this principle, there is no difference between heterosexual or same-sex couples. Indeed, it is humiliating for same-sex couples to not be able to marry, and harms the children reared by them. Fourth, it violates the right to equality.
The sacrosanct status accorded to marriage by the court is questionable, especially in our context, where marriage is not only not accompanied by autonomy, equality and personal choice, but often undermines these. But the Obergefell decision is inspiring in its reliance on constitutional rights: Freedom and equality and their interconnectedness in opening up marriage to homosexual persons on free and equal terms.
It is these principles that the Delhi High Court had championed in the Naz decision of 2009, which had held Section 377 of the Indian Penal Code unconstitutional, to the extent that it penalised consensual sex between adults. The Naz decision recognised that criminalisation of “unnatural offences” under Section 377 and their invidious association with homosexuality violated the right to life and liberty, denied equality and constituted discrimination under Articles 21, 14 and 15 of the Constitution. The Delhi HC rejected public disapproval and morality as a reason for restricting fundamental rights. Instead, it invoked constitutional morality as a reason to protect rights of unpopular persons and minorities. The Scotus decision has echoed the same sentiment.
Unfortunately, the Supreme Court of India, in Koushal, overturned this enlightened reasoning without giving sufficient reason. The SC was of the opinion that criminalisation of same-sex relations is a matter of public policy and not fundamental rights and, therefore, to be left to legislative decision. The same argument was made in Obergefell. That is, the court should not interfere with validly enacted state laws that do not recognise marriage between persons of the same sex. But Scotus was not persuaded and held that “when rights of persons are violated, the Constitution requires redress by courts.” It further reasoned that to wait for the legislature to decide would not only be harmful to the persons affected, but it is the duty of a constitutional court to strike down a law in such situations, if it found the law unconstitutional.
Reading the Scotus judgment, we have to remind ourselves that it was the British who criminalised sexual relations in India in the form it exists. The irony is that the British, who gave us Section 377, have rightly repealed it. But we continue with it.
As the Delhi HC rightly pointed out in the Naz case, we are governed by a constitutional morality, and not a bygone culture. Regarding constitutional morality, the court found that it not only included inclusiveness as a principle but also the fundamental rights to autonomy and liberty, coupled with dignity and equality. In that, it took its cue from a number of judgments from around the world. Not surprisingly, Scotus reiterated the same principles.
Unfortunately, these well-established principles were lost on the SC while delivering the Koushal judgment. One will have to wait till the curative petition is decided by the SC to reaffirm them in India. Ironically, while the US has upheld gay people’s freedom to marry, the SC’s decision to uphold Section 377 has led gay men and women into forced marriages.
A not-so-enlightening part of the Scotus judgment is the reliance on the institution of marriage. Paradoxically, despite reaffirming its faith in marriage, Scotus may have paved the way for challenging the institution itself. The argument on same-sex couples is strongly premised on the principles of autonomy and liberty. Then, why restrict the union of marriage to two individuals? More importantly, why should the state, in law, recognise marriage as the only intimate association? The court has partly justified this on grounds of rearing children, which it implicitly accepts is best done by two people. But there is no reason why a child cannot be better brought up by one parent.
The writer, a senior advocate, represented Naz Foundation in the Delhi HC and SC