Imagine your partner is admitted to the hospital. They are unconscious and the doctors need the next of kin to make a decision. They deny you any role because you are unmarried. Imagine that you and your partner want to move in together. Housing societies do not accept you because you are unmarried. Imagine your partner is in legal trouble and you are asked to testify against them. You wish you honour your relationship and refuse to testify. But you are required to testify because you are unmarried. If your partner is not of the same sex as you are, you can change this and marry. But unlike opposite-sex couples, same-sex couples cannot marry. They are permanently barred from the privileges, rights, and social recognition that marriage brings with it.
On March 13, the Supreme Court referred a batch of petitions seeking the legal recognition of same-sex marriages to a Constitution Bench. The Union government has opposed the petitions. In its affidavit to the Supreme Court, it argued that the traditional concept of marriage, consisting of a “biological man, woman and child”, cannot be disrupted. It further claimed that recognising same-sex marriages could cause havoc in the system of personal laws. Law Minister Kiren Rijiju said that marriage is a matter of policy to be decided by Parliament and the executive alone.
None of the three arguments stands up to scrutiny. Same-sex marriage is not a matter of policy, introducing it will change personal laws minimally, and traditional values are irrelevant in matters of determination of rights.
The suggestion that marriage is a matter of policy implicitly assumes that the status quo does not violate any rights. Any social policy is liable to judicial interference if rights are violated. For example, it is a policy decision for the state to roll out new schemes. But if the scheme’s conditions are discriminatory or violate the recipient’s right to privacy, the court ought to step in.
In the case of same-sex marriage, this is precisely what the petitioners are claiming. They rely firstly on the rights to equality and non-discrimination as laid out in Articles 14 and 15. The Constitution prohibits the state from discriminating on the basis of sex. “Sex” has been interpreted by the Supreme Court in Navtej Singh Johar (2018) to include “sexual orientation”. Granting the right to marry to heterosexual couples and not to homosexual couples clearly discriminates on the basis of their sexual orientation.
The petitioners also have a strong case with respect to the right to privacy. The Supreme Court recognised this right to be part of the right to life and liberty under Article 21 of the Constitution in the celebrated Puttaswamy (2017) verdict. The court said: “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.” The right to privacy entails the right of the citizens to make decisions about their family life and marriage. The state currently denies same-sex couples this right.
Marriage laws are then no mere policy matter. The government would need very strong reasons to justify why nevertheless same-sex couples should be denied the right to marry. One reason the government has put forward is that recognising same-sex marriages disrupts the delicate balance of personal laws in the country. As different from many liberal democracies, in India, aspects of marriage, succession and adoption are governed by religious personal laws. As far as marriage is concerned, the Hindu, Christian and Shariat laws, in addition to customary law, govern religious marriages.
There is one exception: The Special Marriage Act. The Special Marriage Act is a secular law which works alongside religious personal laws. Same-sex marriages can be recognised under the Special Marriage Act. The Act already speaks of marriages between “any two persons” which are solemnised under it. Any two persons can include two persons of the same sex.
The Special Marriage Act does make several references to the terms “husband” and “wife”. Under same-sex marriages, there will, of course, continue to be husbands and wives, with the only exception that sometimes there are two husbands or two wives. The main linguistic change necessary is in clauses which use the definite article “the”. For example, the Special Marriage Act holds that separation can be presented by either the husband or the wife. Understanding this clause to refer to “a” husband or “a” wife would render the text compatible with constitutional rights.
This is a small step in law. Our courts have accepted greater twists of language. Even if the Court was unwilling to accept this re-interpretation of the Act, there are other options. The Court could declare that there is a right to same-sex marriage and direct the state to recognise them on the same terms under the Special Marriage Act. Consider the situation in the United States. In Obergefell v Hodges (2015), the Supreme Court of the United States held that same-sex couples have a constitutional right to marriage. Thirty-one out of the 50 states in the United States have marriage laws that define marriage as between a man and a woman. None of this matters in practice given that the Supreme Court ruling entitles same-sex couples to marry. It would be wrong to suggest that the language of the Special Marriage Act, which is less strongly opposed, will be an obstacle to marriage equality.
As we have argued, the demand for same-sex marriages can be made through a small change in the secular marriage laws while leaving religious personal laws alone. This important conclusion helps us respond to the charge that same-sex marriage would disrupt the “sanctity of marriage” or alter the traditional concept of marriage consisting of a “biological man, woman and child”.
The argument for the sanctity of marriage only makes sense when we talk about religious personal laws. The concept of sanctity is a religious one and the understanding that marriage is sacred relies on religious notions. We are not suggesting that this argument ultimately succeeds, but what is clear is that the argument is completely misguided when it is applied to the Special Marriage Act. A change in the Special Marriage Act does not change religious personal laws at all. Simply put, one cannot argue religiously about a secular law like the Special Marriage Act.
This leaves us with the “traditional concept of marriage” and the argument that same-sex marriage goes against prevailing social values. In this context, the Supreme Court has repeatedly made it clear that the yardstick has to be constitutional morality rather than popular morality. The government cannot deny anyone their constitutional rights to equality and privacy simply because this would challenge popular morality.
For too long, gay and lesbian couples have been denied their rights by appeals to prevailing popular morality. They deserve better than this. In deciding the aforementioned Obergefell case, Justice Kennedy wrote movingly that “in forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death… They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” Our Supreme Court must agree.
(Steuwer is an Assistant Professor of Politics at Ashoka University. Raj is a lawyer at the Supreme Court of India. Views are personal)
Participants hold a rainbow flag during gay pride parade, which is promoting gay, lesbian, bisexual and transgender rights, in Mumbai. (REUTERS, file) 
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