'Demand Rooted in the Constitution': LGBTQI Rights Activists Urge SC to Legalise Same-Sex Marriage

"[In opposing same-sex marriage,] the Union of India ignores its constitutional commitment to securing the right to equality towards its LGBTQI citizens and seems adamant on perpetuating discriminatory marriage laws."

New Delhi: A group of LGBTQI activists has written an open letter on the same-sex marriage case being heard in the Supreme Court, which was recently referred to a constitution bench. The activists have urged the court to recognise marriages between same-sex couples.

“The right to equality, the right to dignity as well as the right to intimate expression are deeply affected by the non-recognition by the right of LGBTQI persons to marry the person of their choice,” the letter states.

The letter goes on to point out several flaws in the Union of India’s affidavit in the case, which has opposed same-sex marriage. “The Union of India ignores its constitutional commitment to securing the right to equality towards its LGBTQI citizens and seems adamant on perpetuating discriminatory marriage laws,” it says.

The letter was released at a press conference in Bengaluru on Tuesday organised by Namma Pride and Coalition of Sex Workers and Sexual Minority rights (CSMR). Speakers and those endorsing the letter included Akkai Padmashali from
Ondede, Uma Umesh from Jeeva, Ayaan Sayed from Namma Pride, transgender rights activists Christy Raj, Riyana and Rakskhita, and president of PUCL Karnataka Arvind Narrain.

Read the full text of the letter below.


We welcome the posting of the matter regarding same sex marriage in Supriyo Chakraborty v Union of India  before a five judge bench on 13 of March 2023.  The decriminalization of LGBTQI lives by the Supreme Court decision in Navtej Singh Johar in 2018 has unleashed the legitimate  hopes and aspirations of the LGBTQI community to be seen as equal members of society.

It is this deep desire for equality which has driven over 30 people from across the country to file petitions in the Supreme Court asking for the law to recognize their relationships as equal to any heterosexual marital relationship.  The petitioners include  Supriyo Chakraborthy and  Abhay Dange, a gay couple; Kavita Arora and Ankita Khanna, a lesbian couple as well as Akkai Padmashali, Uma Umesh and Vyjayanti Vasanta Mogli who are transgender rights activists who believe that all persons in the transgender community must have the right to marry the person of their choice.

We believe that this demand for recognizing the right of all persons to marry under the legal framework is a just demand, which finds place under the Indian Constitution. The right to equality, the right to dignity as well as the right to intimate expression are deeply affected by the non-recognition by the right of LGBTQI persons to marry the person of their choice.

This demand for the right to marry for all persons is deeply rooted in the principles of the Indian Constitution as interpreted by the Supreme Court.

The  Supreme Court in Puttaswamy v Union of India held that:

The sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well being. The pursuit of happiness is founded upon autonomy and dignity.Both are essential attributes of privacy which makes no distinction between the birth marks of individuals.

The Supreme  Court in Navtej Johar v Union of India held that:

The constitutional principles which have led to decriminalization must continuously engage in a rights discourse to ensure that same-sex relationships find true fulfillment in every facet of life. The law cannot discriminate against same-sex relationships. It must also take positive steps to achieve equal protection.

The Supreme Court in NALSA v Union of India has pointed out ‘Indian Law, on the whole, only recognizes the paradigm of binary genders of male and female, based on a person’s sex assigned by birth, which permits gender system, including the law relating to marriage, adoption, inheritance, succession and taxation and welfare legislations.’

The NALSA judgment held that this restrictive understanding of person is hit by Article 14 as ‘Article 14 does not restrict the word ‘person’ and its application only to male or female. Hijras/transgender persons who are neither male/female fall within the expression ‘person’ and, hence, entitled to legal protection of laws in all spheres of State activity, including employment, healthcare, education as well as equal civil and citizenship rights, as enjoyed by any other citizen of this country.’

Also read: Why the International Law Angle Is Missing From Cases on Same-Sex Marriages

The principles of the Constitution as interested by the Supreme Court have become the very basis of challenging biased and arbitrary laws which limits marriage as a right restricted to a ‘biological man’ with a ‘biological woman’.

Unfortunately, this form of thinking rooted in the transformative constitutional principles of equality and dignity are absent in the affidavit submitted by the Union of India in the marriage case. The Union of India ignores its constitutional commitment to securing the right to equality towards its LGBTQI citizens and seems adamant on perpetuating discriminatory marriage laws.

The Union of India’s  justifies this die-hard opposition to marriage equality on the basis that it is the ‘legislature which reflects the collective wisdom of the nation’ which is ‘based upon cultural ethos, social standards and such other factors defining acceptable human behavior regulates, permits or prohibits human relations.’ This notion that the legislature alone has the right to ‘permit, regulate or prohibit human relationships’ and that too based on ‘collective ethos and social standards’, shows no appreciation of the values of the Constitution.

One needs to make two points here. Firstly, it is far from obvious that the ‘cultural ethos’ of India demands that marriage for all be rejected. A magnificent  history of ‘ Same sex love in India’  going back to 1000 BC by Ruth Vanita and Saleem Kidwai documents a rich cultural history of same sex love in India.  Secondly, even if there was a ‘cultural ethos’ opposing same sex marriage, the Government which is sworn to ‘bear true faith and allegiance to the Constitution of India’, should be cognizant that their affidavit ignores core constitutional principles of dignity, equality and non discrimination. It instead seeks to justify the exclusion of same sex/Transgender  couples on the basis of the vague and arbitrary conceptions of  ‘cultural ethos’.

The Union of India’s affidavit also seems to misunderstand the contours of the right to privacy recognized by the Navtej judgment. The affidavit  holds that the ‘dictum of the judgment’ applies to the ‘personal private domain of individuals’  and cannot include a ‘public right in the nature of recognition of same-sex marriage and thereby legitimizing a particular human conduct.’

Also read: What Economics Says About Same Sex Marriage

In Navtej Johar the Court held that the right to privacy was not just a ‘zonal right’ but a right to make decisions about one’s intimate life. As such the concept of privacy does not only protect sexual conduct in the private sphere but also the expression of love in the public sphere. One form that such expression of the right to love can take in the public sphere is through the institution of marriage. Thereby by denying the right to marry for all persons one is going against the ‘dictum’ of Navtej Johar which protects not only the right to private sexual conduct but also the right to love.

The position of the Union of India that  the right to equality as embodied in Article 14 is not violated as ‘same sex relationships and heterosexual relationships are clearly distinct classes which cannot be treated identically’ is troubling. In effect the Union is asserting that there are classes of personhood. Heterosexual couples are entitled to more rights than homosexual couples and trans couples. This bare animus towards homosexual couples and trans couples and denial of the basic rights to a relationship recognized by law hits at the constitutional bedrock principle of equality.

The position of the Union of India is that individuals conduct must ‘accord with the moral values of society’. However, its our position that moral values should accord with the Constitution. We should be defending constitutional morality and not popular morality. As Babasaheb Ambedkar put it,

Constitutional morality is not a natural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.

The fact that the Union of India is opposing the right to marry for all persons so vociferously shows that the values of constitutional morality have yet to seep into governance structures and the government instead of implementing the Constitution is giving in to popular biases and prejudices.

However we have full faith, that the Court will deliver justice by interpreting the Constitution to protect the rights of LGBTQI persons.