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Why LGBTQ+ Indians deserve the right to marry

Lawyer Saurabh Kirpal reacts to the Centre’s affidavit opposing marriage equality

Transgender woman Tista Das married a transgender man in Kolkata in 2019 after the couple underwent sex reassignment.
Transgender woman Tista Das married a transgender man in Kolkata in 2019 after the couple underwent sex reassignment. (Getty Images)

Last week, the government at the Centre filed an affidavit with the Delhi high court opposing the right of the LGBTQ+ community to marriage under Indian law. “Living together as partners (and) having sexual relationship by same sex individual is not comparable with Indian family unit concept of a husband, wife (and) children which necessarily presuppose a biological man as ‘husband’, a biological woman as ‘wife’ and children born out of union,” the affidavit said.

The Centre argued further that “Parliament has designed and framed the marriage laws in the country, which are governed by the personal laws/codified laws relatable to customs of various religious communities, to recognise only the union of a man and a woman to be capable of religious sanction...thereby claim legal and statutory sanction.” This line of reasoning is not only exclusionary, it ignores the provisions made in the Special Marriage Act, allowing for secular unions.

Lounge speaks to Saurabh Kirpal, one of the lawyers who argued the case that led to the reading down of Section 377 of the Indian Penal Code in 2018, and who is fighting for the community’s right to marriage. He has recently edited a volume of essays, Sex And The Supreme Court: How The Law Is Upholding The Dignity Of The Indian Citizen. Edited excerpts from a video interview:

The Centre was always unambiguously opposed to marriage equality. But in the 2018 verdict, even Justice Dipak Misra spoke of a right to union for the LGBTQ+ community as separate from the right to marry. What’s your take on this?

One way to interpret Justice Misra’s words (“When we say union, we do not mean the union of marriage, though marriage is a union”) is that he includes unions that are even beyond marriage, though my reading is that he means every union that is a subset of marriage. When the matter was being argued, the Centre had made it clear that the court should restrict itself to decriminalisation of the LGBTQ+ community, not go into the issue of marriage equality. However, the verdicts delivered by the other judges—D.Y. Chandrachud, Indu Malhotra and Rohinton F. Nariman—do not leave any scope, in my mind, to exclude marriage equality as part of the fundamental rights of the community.

When a judgement comes in a constitutional court interpreting the Constitution, it’s restricted to the facts of that case. But that does not mean that principles which are broader than the facts are not laid. That kind of adjudication is imperative, essential and normal in a common-law country like ours, where you value precedent. So it is correct to say that Navtej Johar v. Union of India (2018) did not decide the issue of marriage equality directly, but all the principles laid down in it inevitably lead to one conclusion—that it laid down the path for gay marriage.

Saurabh Kirpal was one of the lawyers who argued the case that led to the reading down of Section 377 of the Indian Penal Code in 2018.
Saurabh Kirpal was one of the lawyers who argued the case that led to the reading down of Section 377 of the Indian Penal Code in 2018.

The Centre’s affidavit invokes the “Indian family unit”. Is there a legal definition of such an entity? If there is one, how does it square with the idea of family as, say, prevalent among the trans community?

I think this is a very heteronormative, upper-caste idea of what an Indian family is, drafted by a person who is restricted by their own life experiences. The Centre has referred to no study to explain the meaning of the term. Crucially, we are not asking for recognition of marriage equality as part of the “Indian family unit”—we are asking for change. To claim something has never happened before is to defeat the very purpose of asking for change. If you hark to the past to see what rights people had back then, you will never get new rights. If you are only going to preserve the status quo, why have a Constitution and constitutional courts?

There is a further reference to “biological man and biological woman”, which is completely exclusionary in terms of the trans community, especially since members of such groups have been living as families for the longest time. I feel we should sidestep this entire discussion of what constitutes a family unit—because the whole point is it doesn’t matter, as long as you recognise the right of people of different sexualities to form a union and live together. You can’t then put their union at a lower rung than a heterosexual union, as that violates Article 14 (right to equality).

Marriage has always been a patriarchal and heteronormative institution. Why are we not opting for the civil union route?

Marriage may be a heteronormative route but a large number of same-sex couples come from traditional, conservative societies and they want to marry. In India today, if you ask parents what they want their child to do, among various aspirations—be it going to the IITs (Indian Institutes of Technology), becoming a doctor, or getting a good job—they want to get their child married. So, marriage has an important sociological impact.

Civil unions, whether they exist or not, is a separate debate. Our current concern is with the marriage equality debate—not civil union for straight people versus civil union for queer people. To conflate the two would be to divert from our fundamental problem with discrimination against the queer community. If marriage is good enough for straight people, it should be good enough for the queer community too. I agree marriage is a heteronormative institution, but then the solution is to reform it for everybody.

The religious aspects of marriage are also tied to the affidavit. What will be your response to it?

Marriage is not only a religious phenomenon, it is also a social event. The moment you get into the secular aspect of it, as guaranteed by the Special Marriage Act, you encounter its legal and social impact. The latter involves two parties entering a pact to live together and the way society reacts to their decision. The former, especially for queer couples, brings a host of rights upon marriage. But the moment you transgress the religious space, you cannot invoke it again to restrict rights. To do so in a secular country would also mean violating the Constitution. This is why we are asking for recognition under the secular Special Marriage Act—not the Hindu Marriage Act or any other religious marriage laws.

Could you talk about the judgement on the right to privacy in the Puttaswamy case of 2017 and how it impinges on the right to marriage?

Justice Chandrachud’s verdict in that case looks at autonomy and privacy as a compendium of rights that allow an individual to live a dignified life, which ought to include the right to have a same-sex partner. To say a person has the right to a same-sex partner and not give the rights of same-sex partnership to them is meaningless. The moment you give someone a right, you must give all the enabling rights too. These judgements are not isolated instances of a constitutional jurisprudence. All these rights are expansions of the core ideas of how the Constitution views an individual.

How hopeful are you about the outcome of the current cases?

We thought we were on a strong constitutional wicket in 2013 in the Suresh Kumar Koushal v. Naz Foundation judgement (which reinstated Section 377). So, we are cautiously optimistic. We think we have a good lead in the case, the precedent supports us, but there is always unpredictability in adjudication. Change doesn’t happen by itself; you have to make it happen. We don’t have a choice but to move the courts because it’s not as if Parliament is going to legalise same-sex marriage in India anytime soon.

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