SSupreme Court struck down part of section 377 of the Indian Penal Code Navtej Singh Johar v. Union of India (2018)Same-sex intimacy between adults is no longer a crime in India. As a result, same-sex couples have been advocating for their right to marry and live together. While some couples have faced harassment from their families and demanded police protectionOthers have filed petitions before various high courts They are demanding the rituals of their marriage. Two such petitions were filed by same-sex couples, Supriya Chakraborty and Abhay Dang, and Partha Feroz Mehrotra and Uday Raj Anand, directly before the Supreme Court under Article 32 of the Indian Constitution, challenging the gender-specific validity of the Special Marriage Act. Neutral interpretation was sought. , 1954 (SMA) to enable same-sex persons to marry.
The case was on 13 March 2023 Transfer From a bench of three judges to a larger bench of five judges under Article 145(3) of the Constitution because of the substantial legal questions raised by the petitions regarding the interpretation of the Constitution. Several laws including the Hindu Personal Law, the Special Marriage Act and the Foreign Marriage Act were challenged in the petitions. After a spirited argument on the first day of hearing between the lawyers representing some of the petitioners and the Solicitor General of India, it was decided to limit the scope of the matter to SMA.
It questions the court’s decision to narrow the scope of the case and ancillary issues arising out of choosing this narrow scope.
Arguments of the Petitioners and Respondents on Scope of Case
On the first day of the hearing, the petitioners and respondents presented their opening arguments for and against marriage equality. One of the key questions before the court was how to accommodate same-sex marriages in the context of India’s complex array of marriage laws. Unlike many other countries, India has a number of laws governing marriage, including personal laws based on religion and community customs. This complex legal landscape presented a significant challenge for the court.
The Seventh Schedule of the Indian Constitution consists of three lists delineating the powers and functions of the central and state governments. The Concurrent List or List III contains subjects on which both the Central and State Governments can make laws. Entry 5 of the Concurrent List specifically covered marriage and divorce, prompting respondents to argue that the correct forum for debate on marriage equality was Parliament, not the courts, and that all states had to be sides of the caseIn view of the importance of the matter.
However, the petitioners claim that the Supreme Court has previously addressed issues surrounding marriage that violates the fundamental rights of individuals, as Lata Singh vs. State of UP (2006) And Shafin Jahan Vs Ashokan KM (2018) without adjourning Parliament.
Thus, to balance the interest of the State in regulating A. “social institution“With multiple statutory, socio-cultural, religious and legislative implications and the interest of the petitioners in protection of fundamental rights, the Supreme Court decided to consider the matter on a limited basis: to assess the pros and cons of the argument under SMA alone For, this time without touching the Personal Law.
SMA Is a secular law that allows people of different religions or nationalities to marry, regardless of the faith or religion practiced by either party. However, Section 19 of Chapter IV of the SMA provides for the severance of a Hindu, Buddhist, Sikh, or Jain spouse from their undivided family after marriage, thereby depriving them of the right to claim a share in the joint family property. Meets- which goes to show that even the SMA is not completely immune to personal law. Nevertheless, the court decided to confine its consideration to the SMA and not touch upon individual laws for the time being, due to the inherent complexity of the issue and the need to balance competing interests.
The court recognized that same-sex marriage is a sensitive issue with significant legal, social and cultural implications. It also recognized that personal laws are deeply embedded in the social fabric of India, and any decision relating to them can have far-reaching consequences. Therefore, the court decided to take this cautious and incremental approach by considering the validity of same-sex marriage under the SMA before proceeding to address the broader question of personal laws.
Conflict between Personal Laws and Fundamental Rights: A Brief Overview of narasu appa And shayra banu
The conflict between personal laws and fundamental rights is not a new issue in India’s legal system and has been the subject of debate and judicial scrutiny over the years. Part III of the Constitution, which includes Articles 14, 15, 19, and 21—the articles on which the petitioners rely—also includes Article 25, which guarantees freedom of conscience to all persons to profess, practice, and propagate religion. guarantees freedom of action. , subject to public order, health and morality. The question arises as to what happens when religious freedom collides with queer rights.
Significant here is the Bombay High Court case of 1951 State of Bombay Vs Narasu Appa Mali Which examined the constitutionality of the Hindu Bigamy Act, 1946.
Article 13(1) of the Indian Constitution, which comes under Part III, states that “All laws in force in the territory of India immediately before the commencement of this Constitution in so far as they are inconsistent with the provisions of this Part shall, to the extent of such inconsistency, be void.” In narasu appa case, the constitutionality of the Hindu Bigamy Act, 1946 was examined in the light of Article 13(1), and it was determined that “applicable lawsrefers only to laws passed by the Legislature or other competent authority in India Earlier The beginning of the Constitution, thus leaving personal laws out of the purview of scrutiny. The Court further argued that the scheme of the Constitution is to leave personal laws untouched except where specific provisions are made and to allow future legislatures to amend and reform them for a common and uniform code. Interestingly, the Court also highlighted Entry No. 5 in the Concurrent List, which gives legislatures the power to pass laws affecting personal law, echoing the arguments made by the respondents in the present marriage equality case. Is. In short, the case provided a safeguard for personal laws from being challenged as unconstitutional and argued that such changes must be made by a competent legislature.
In a nutshell, senior advocate Indira Jaising said Number ghost outside narasu appa Still troubled by the decisions of the Supreme Court. Even in the historic triple talaq case of 2017, Shayara Banu Vs Union Of Indiaconstitutionality of narasu appa was challenged. The then Attorney General argued that individual laws should be examined in the light of the larger goal of gender justice narasu appa Wrong decision was taken. Even though the court eventually declared triple talaq unconstitutional, it did not do so on the grounds of gender discrimination. Furthermore, the judgment came with a close 3-2 split, in which the then Chief Justice of India, Jagdish Singh Khehar, and Justice S.K. Abdul Nazeer disagreed and reiterated that personal laws had constitutional protection, which had risen to the stature of a fundamental right. Constitution. He further submitted that judicial interference with personal laws can be provided only in the manner as provided in Article 25 of the Constitution and nowhere else.
He rejected the arguments of the Attorney General narasu appa By reviewing the various ‘reforms’ in personal laws in India (such as the Divorce Act, 1869; the Parsi Marriage and Divorce Act, 1936 and the Special Marriage Act, 1954, which replaced the Special Marriage Act, 1872), and considered that this In relation to matters relating to personal laws, and especially those relating to marriage and divorce issues for different religious communities, issues governed by personal law were replaced only through legislation. Not a single instance of judicial interference was brought to their notice except for a few judgments given by the High Courts.
The protection of personal laws was raised to the level of a fundamental right as Article 25 of the Constitution provided such protection as it is also a part of Part III of the Constitution. Therefore, while the Constitution supports gender equality, it also upholds the sanctity of personal laws through which religious communities and sects govern themselves. as an exception, Chief Justice Jagdish Singh Khehar and Justice S. Abdul Nazeer was clear: Judicial interference with personal laws can be provided only in the manner as provided for in Article 25 of the Constitution and it would not be possible to violate its parameters. Matters of faith, as they have the safeguard of Article 25 (except as provided in the proviso).
Given the religious objections of all religious communities to the current marriage equality case, and the Court’s own conflicting views on the Act balancing personal laws with fundamental rights, it is important for the Supreme Court and the petitioners to consider marriage rights under secular It was strategic to seek. Stay away from SMA and personal laws at this point.
Read also: Allowing gay marriage would reduce divorce rates in ‘straight’ marriages
Sustaining Democracy: Ensuring Equal Application of the Rule of Law to All Citizens
As day-to-day hearings continue about whether gay marriage should be recognized, it is worth noting that the government and almost all religious groups as well as professional legal bodies such as Bar Council of India and All Delhi Bar Association Parliament has issued resolutions calling for a debate and decision on the issue by the elected representatives. He argues that matters that have the potential to affect society at large should not be left to judicial interpretation alone. During the hearing, the Chief Justice made it clear that the Supreme Court was under pressure to decide whether to intervene or not Asked petitioner, “The question is really what gaps are left in which this court can intervene… The test is really, how far can the courts go?”
While the Court’s decision to limit the scope of the SMA in the present case may seem logical, if India indeed wishes to retain its status as a “mother of democracy”, it must ensure that the rule of law is equally applicable to all citizens without any discrimination. While personal law reform discussions will undoubtedly raise controversial issues, the court’s decision to narrow its focus should not limit the rights of the queer community to just one act.
Despite the fact that the country may not be fully ready to accept the full and complete rights of the queer community, it is important to aware and educate the public on this matter. For too long, the queer community has been a victim of unfair discrimination, prejudice and hatred solely because of their identity. It is morally wrong and unjust. Parliament, the Judiciary and the Executive must cooperate to ensure that the fundamental freedoms and guarantees of the gay community are accepted and respected, even if it is contrary to the beliefs of the majority. Only by working together can India truly claim to be a democracy that protects the rights of all citizens, regardless of their identity.
Kanav N Sehgal is the Constitution Fellowship Program Manager at the Vidhi Center for Legal Policy and Communications, NYAY. Thoughts are personal. this article was Originally Published on the Vidhi Center for Legal Policy website.