Marriage equality order is not just about LGBTQ+

The same-sex marriage judgment could influence the upcoming anti-conversion hearings. It holds clues for the State to assert its legal and moral compass

The Supreme Court (SC) delivered a divided verdict last week on granting constitutional protection to civil unions and adoption rights for queer couples, even as it was unanimous in ruling that there is no constitutional right to marry and that the State can step in when its interest in democratising private space overrides the interests of privacy.

The same-sex marriage judgment, therefore, could influence the proceedings in the upcoming anti-conversion hearings. (PTi)

But it’s not just about the rights of the Lesbian, Gay, Bisexual, Transgender, Queer (LGBTQ+) community. At stake is also a raft of petitions challenging the validity of several anti-conversion laws enacted by some state governments in recent years. These petitions argue that the anti-conversion laws dangerously imperil the freedom of conscience and the right to make choices in matters intrinsically involving privacy; but the unanimous verdict in the same-sex case appears to back the role of the State in regulating marital unions and “private space”, and could bolster the government’s defence of these anti-conversion laws.

The tryst between anti-conversion laws and the judiciary is a long one. Forty-six years ago, a five-judge Constitution bench of the SC affirmed the validity of anti-conversion laws in Odisha and Madhya Pradesh, saying the freedom to propagate one’s religion did not grant a fundamental right to convert another person.

The 1977 ruling also acknowledged the State’s role in enacting such laws to ensure public order which could otherwise be affected by complaints of forcible conversions.

Drawing from the apex court’s ruling, at least seven other states drafted their own version of anti-conversion laws over the last five decades — some of them legislated chiefly with the stated objective of forbidding marriages that are perceived by Right-wing groups as an instrument of coercion to convert individuals from one religion to another (loosely referred to as love jihad).

As challenges to some of these laws — including the ones framed by the Bharatiya Janata Party governments in Uttar Pradesh and Uttarakhand — queued up in the top court, the nine-judge bench ruling in the 2017 KS Puttaswamy vs Union of India, which declared privacy to be a fundamental right, is poised to become a turning point in the discourse.

The privacy judgment engendered a fine balance of competing and corresponding fundamental rights juxtaposed with constitutional nuances and legal interpretation. It declared that privacy is intrinsic to the realisation of constitutional values and entrenched fundamental rights, underscoring the significance of the autonomy of individuals to make crucial decisions affecting their personhood, such as procreation and abortion.

One of the judges on this bench, Justice Rohinton Nariman, observed that the right to privacy extends beyond the right to be left alone, to recognise vital personal choices such as the right to abort a foetus, and the right of same-sex couples to marry. It struck the first blow against Section 377 of the Indian Penal Code.

A year later, a five-judge bench decriminalised homosexuality between consenting adults, borrowing extensively from the privacy ruling.

The 2018 Navtej Johar verdict declared that the members of the LGBTQ+ community are entitled to the full range of constitutional rights, including the right to choose whom to partner with, the ability to find fulfilment in sexual intimacies, the benefit of equal citizenship, and the right not to be subject to discriminatory behaviour.

Last week, the five-judge bench in the same-sex marriage case was emphatic that neither the privacy judgment nor the one on decriminalising homosexuality implied that the right to marry is a fundamental right. “It now falls upon this court for the first time to decide if the Constitution recognises such a right,” said the judgment authored by Chief Justice of India (CJI) Dhananjaya Y Chandrachud. The CJI reasoned that declaring the right to marry a fundamental right would obligate the State to create an institution even if the legal regime does not provide for it. The CJI added that marriage may not have attained the social and legal significance it currently has, had the State not regulated it through law.

Justice S Ravindra Bhat, in his separate but concurring opinion, held that the importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support.

A postgraduate degree or access to the internet may very well be considered fundamentally important by a section of people but these cannot become enforceable rights that the court can direct the State to provide. The “broad observations” in the judgments on privacy and decriminalisation of homosexuality, he maintained, cannot be referenced to claim there exists an unqualified right to marry, which requires treatment as a fundamental freedom.

The concept of marriage equality as well as the right to choose a life partner indisputably involves the State and its instrumentalities under the current legal regime.

By not elevating the right to marry as a fundamental right and rejecting the right to a civil union, the SC has not only let the State off for not creating an institution for queer couples but also acquiesced to State interest in interfering with cherished freedoms that many people — and not just queer people — had hoped the two previous landmark verdicts had accorded to them.

“As long as an individual exercises it, from within, and in privacy, there can be ordinarily no inroads into it; its external manifestation may call for scrutiny, at given points in time,” Justice Bhat wrote in his majority judgment — an asseveration one may get to hear repeatedly when states seek to repel challenges to their anti-conversion laws.

The same-sex marriage judgment, therefore, could influence the proceedings in the upcoming anti-conversion hearings. It holds clues for the State in asserting its legal and moral compass in regulating inter-faith marriages, which ought to be guided only by personal autonomy and individual agency.

The views expressed are personal