Should same sex marriage be legalised in India – 3

The impugned provisions of the Special Marriage Act of 1954 are based on irrational and discriminatory stereotype gender roles assigned by the society to man and woman and thus cannot pass the test of non-discrimination imposed by Article 15(1) of the Const. Justice Chandrachud, in his concurrent opinion in Navtej Singh Judgement, had opined that: ‘Section 377 criminalizes behaviour that does not conform to the heterosexual expectations of society.

In doing so it perpetuates a symbiotic relationship between anti-homosexual legislation and traditional gender roles. The notion that the nature of relationships is fixed and within the ‘order of nature’ is perpetuated by gender roles, thus excluding homosexuality from the narrative.’ The Hon’ble Court had held, in Navtej singh Judgement, that: ‘Members of the LGBT community are entitled, as all other citizens, to the full range of rights including the liberties protected by the Const..’

It  is  argued  with  astuteness  that  same sex marriage has  a  chilling effect  on  Article  19(1)(a)  of  the  Constitution  which  protects  the fundamental  right  of  freedom  of  expression  including  that  of  LGBT persons  to  express  their  sexual  identity  and  orientation,  through speech,  choice  of  romantic/sexual  partner,  expression  of romantic/sexual desire, acknowledgment of relationships or any other. To buttress  the  said  stance,  reliance  is  placed  upon the  decision  in  S. Khushboo v. Kanniammal and  another wherein it has been held that  law  should not  be  used  in  such a  manner that  it  has  a  chilling effect  on  the  freedom  of  speech  and  expression.   Denial of the institution of marriage to the homosexuals and the refusal of law to recognize and accept homosexual marital unions is also a violation of their right to freedom of expression guaranteed to them by the Constitution of India under Article 19(1)(a) and are thus illegal and constitutional. The communities right to expression of love in the form that they aspire to conduct will be meaningless if their marital union is not recognized by law.

Expression of love, growth of one’s personality within a relationship and development of an identity of union will be incomplete if the law refuses to recognize same sex marriages and thereby it affects the Article 19(1) rights of the petitioners guaranteed by Article 19(1)(a) of the Constitution of India.  Article 19 (1)(c) of the Constitution protects any citizen’s right to form an association or union as far as the manifestation of that right does not vitiate the reasonable restrictions imposed under Article 19(4) of the Constitution.

The aforesaid right to form a union extends to marital unions as well. ‘Union’ is more than one person coming together and acting in consonance for a common purpose. Like any other body corporate, marital union/ married couple also carries rights and obligations of being legal entity in itself. A married couple is a recognised legal personality. Thus there exists no reason to not include married couples from the scope of ‘union’ as it appears in Article 19(1)(c). Man requires company or a partner and cannot progress in isolation. The ancient Greek Philosopher Aristotle had remarked:

“Man is by nature a social animal; an individual who is unsocial naturally and not accidentally is either beneath our notice or more than human. Society is something that precedes the individual. Anyone who either cannot lead the common life or is so self-sufficient as not to need to, and therefore does not partake of society, is either a beast or a god.”

It is also submitted that their right to privacy which is implicit under Article 21 of the Constitution of India by denying them access to the institution of marriage recognized by law. Non recognition of marriage of homosexuals is an attack on individuality and autonomy which are essential to the right to privacy guaranteed to an individual. The Hon’ble Supreme Court, in K.S. Puttaswamy v. U.O. I, had held that:

“Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy.”

Right to Privacy also was held to be inalienable even if it concerns only a minority of the populace. In National Legal Services Authority v. Union of India, the Hon’ble Supreme Court had held that the gender identity is intrinsic to one’s personality and the denial of the said identity which one is entitled to self-determine is a violation of his/her dignity. It is submitted that the right to self determination of sexual identity is a natural pre-cursor to one’s right to choose one’s own partner and these are concepts which are so related and inter-twined that one cannot outlive the other. It is also worthy to point out that Justice Indu Malhotra had, in Navtej Singh’s judgement, held that:

“A person’s sexual orientation is intrinsic to their being. It is connected with their individuality, and identity. A classification which discriminates between persons based on their innate nature, would be violative of their fundamental rights, and cannot withstand the test of constitutional morality.”

It can be concluded that the right to self-determination of one’s own gender and the right to sexuality are lost without the opportunity to contract marriage and love. It can therefore be safely inferred that the right to form a family union is an inalienable right of one’s own and that society or the crowd has no valid interest in intervening in that decision-making.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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