In a recent petition before the Delhi High Court seeking recognition to same-sex marriage, the Central government has filed an affidavit submitting that there is no such fundamental right to same-sex marriage. The Centre firmly disputed the idea that the right to marriage falls within the right to privacy of an individual.
It was argued by the Centre that legalizing same-sex marriages was beyond the purview of the court. Such formalization is essentially the decision of the legislature and cannot be decided through judicial adjudication. The Centre clearly stated in the affidavit that, “there is a “legitimate state interest” in limiting recognition of marriage to persons of opposite sex only”.
The affidavit gave a clear idea of the institution of marriage acceptable in India, asserting that in India, marriage is considered only to be a “solemn institution between a biological man and a biological woman”. It further claimed that same-sex marriage would be in clear violation of the existing personal as well as codified law seeking dismissal of the petition.
Here are some focal points from the Centre’s affidavit:
• “The acceptance of the institution of marriage between two individuals of the same gender is neither recognized nor accepted in any uncodified personal laws or any codified statutory laws”.
• “While a marriage may be between two private individuals having a profound impact on their private lives, it is submitted that marriage, as a public concept, is also nationally and internationally recognized as a public recognition of relationship with which several statutory rights and obligations are attached”.
• “In our country, despite statutory recognition of the relationship of marriage between a biological man and a biological woman, marriage necessarily depends upon age-old customs, rituals, practices, cultural ethos and societal values”.
The Centre also clarified in this case that the legalization of homosexuality by the Supreme Court in the case of Navtej Singh Johar v. Union of India included “only a limited declaration to decriminalize a particular human behaviour, which was a penal offence under S.377 IPC. The said declaration was neither intended to, nor did in fact, legitimise the conduct in question.”
Here’s a brief timeline of decriminalization of homosexuality:
It was during the British rule that homosexuality was criminalized under Section 377 of the Indian Penal Code, 1860 which speaks of unnatural offences. In 2009, the Delhi High Court revoked section 377 of IPC in Naz Foundation vs. Govt. of NCT of Delhi, thus legalizing homosexuality. The judgement held section 377 to be in violation of the fundamental rights of dignity and privacy guaranteed by the Indian Constitution. This decision was however, overruled by a Supreme Court two-judge bench in Suresh Kumar Koushal vs. Naz Foundation in 2013 where section 377 of IPC was reinstated and again declared an offence.
This decision was then overruled in 2018 by a Supreme Court five-Judge Constitutional Bench in Navtej Singh Johar v. Union of India, which again decriminalized homosexuality and made sexual intercourse between individuals of the same sex, legal in India. The then Chief Justice of India, Dipak Misra, crystallized “Majoritarian views and popular views cannot dictate constitutional rights. LGBT community possesses human rights like all other sections of society. Equality is the essence of the constitution. 377 is arbitrary.”