It’s status quo

The government's decision to adopt an archaic, unconstitutional, right-denying stand is disquieting, writes Arvind Narrain

The affidavit filed by the Central Government in the case challenging the exclusion of LGBT persons from the institution of marriage, reveals quite clearly the determination of the Government to limit the rights of LGBT persons to the decriminalisation of Section 377.

The Central Government declared that “living together as partners and having sexual relationship by same-sex individuals is not comparable with the Indian family unit concept of husband, a wife, and children.” It went on to assert that there is a ‘legitimate state interest’ in limiting marriage between a man and a woman, and this is based on ‘Indian society’s ‘cultural and societal values’.

The affidavit reflects a mindset that is a throwback to an earlier era, circa 2003 when the then Central Government filed an affidavit supporting the retention of Section 377 arguing that ‘the criminal law must reflect public morality’ and that ‘Indian society disapproved of homosexuality’.

While such an opinion was as problematic then as it is now, for the Central Government to go back 17 years in time to adopt an archaic, unconstitutional, right-denying stand is even more disquieting.

The affidavit fails to acknowledge that much has changed since 2003. Today there is a much more accepting public opinion due to the work done by activists over the years and the supportive role of media. A nine-judge bench of the Supreme Court has recognised a fundamental right to privacy which ‘includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.’

The decision in Navtej which decriminalised same-sex conduct recognised that ‘majoritarian governments cannot prescribe what is orthodox in matters concerning social morality’. Importantly, the judges recognised that social morality must give way to ‘constitutional morality’.

These principles form part of the law laid down by the Supreme Court and should guide executive and legislative action.

Unfortunately, the Central Government instead of viewing the litigation in a non-adversarial sense and at least addressing the relationship rights of queer persons through the lens of non-discrimination and dignity has chosen to stubbornly deny the very possibility that queer persons can have the right to marriage.

This unambiguously hostile stance of the Central Government with respect to the very possibility of same-sex marriage, again puts the Delhi High Court in the position of having to make a decision as to whether the petitioners are indeed entitled to the right to marry under the Hindu Marriage Act and the Special Marriage Act.

(The author is a lawyer & writer based in Bengaluru. He is the co-editor of Law like love: Queer perspectives on law.)