The Momentum of History – Realising Marriage Equality in India
Satchit Bhogle*
Volume 12 Issue 3-4 (2019)
The Supreme Court in recent years has evolved a vocabulary of privacy, autonomy, and constitutional morality. This has culminated in the recognition of the right to privacy and the right to choose a life partner, among several. However, in Navtej Singh Johar v. Union of India, which confirmed the decriminalisation of same-sex relations, the Supreme Court outlined the contours of the right to intimate relations in a broad manner. The article argues that the next logical step is marriage equality, or the recognition of same-sex marriage on the same footing as traditional opposite-sex marriage, and that all the jurisprudential ingredients are already present for such recognition. The article argues that the restriction of the definition of marriage to ‘one man, one woman’ constitutes impermissible sex discrimination under Articles 14 and 15 and is also manifestly arbitrary. The article also recognises that the evolving concept of constitutional morality, which trumps social or popular morality as a means to interpret public morality as a restriction on fundamental rights, may be invoked to dispel arguments that same-sex marriage intrudes on the so-called sanctity of traditional opposite-sex marriage. It further argues that ‘one man, one woman’ violates the right to privacy and autonomy, and life with dignity under Article 21, along with the freedom of expression, which includes the expression of sexual orientation and self-identified gender. The article also argues that though the personal law that applies to a person depends on their religion, personal laws are religious neither in origin nor in character; though in any case, marriage equality should not be held to violate religious freedom based on the application of the significantly eroded ‘essential religious practices’ test. Lastly, the article argues that the Hindu Marriage Act and the Special Marriage Act are capable of being interpreted as is to permit same-sex marriage.