Kailash Jeenger 
The Union government has clarified its stand on same-sex marriages. In its counter-affidavit to the petitions seeking legal recognition to same-sex marriages, it said in the Supreme Court that for Indian society, the only acceptable type of marriage is ‘heterosexual marriage’.
The petitioners have specifically pleaded that the right to marry a person of one’s choice be extended to members of the lesbian, gay, bisexual, transgender or queer (LGBTQ) community, as a part of their fundamental rights.
However, the Union government argued that a marriage between two persons of opposite sexes is the ‘“norm throughout history” (i.e., heteronormativity). This argument relies on the idea of ‘public morality’. It condemns conduct which is in contravention of this shared moral code.
So how does this popular morality evolve and what impact does it have on society?
Heteronormativity is the creation of those who dominate; in this case, the heterosexuals, more precisely, heterosexual males. They believe that only their sexual identities and orientation and their way of living is the natural and acceptable way of life. Those who are not in agreement with this so-called “natural” way of life are condemned because they are seen as at odds with “the normal, the legitimate, and the dominant”.
Section 377 of the Indian Penal Code, which declared homosexual intercourse as an “unnatural offence”, illustrates this approach. This inhuman attitude not only discriminates against and rejects the identity and existence of those who are different from the “dominant” but also punishes them for their distinct identity.
Section 377 was struck down in a historic judgment in 2018.
On the other side is the idea of constitutional morality, which the apex court defined as respect for constitutional norms (Manoj Narula, 2014) and strict adherence to the constitution, and developing a spirit of constitutionalism (Govt. of NCT, 2018).
The preamble to the constitution of India aims at, among other things, securing social justice and equality of status, and promoting a spirit of fraternity, assuring the dignity of the individual. Denying the right to marriage to the LGBTQ+ community is a denial of their equal status and dignity. It, consequently, harms the spirit of fraternity, too.
‘Social stability’ or alienation of the LGBTQ+ community?
Article 14 of the constitution guarantees the fundamental right of equality before law. The notion of equality does not imply sameness; rather it connotes that likes should be treated alike and those who are different should be dealt with differently.
While giving different legal treatment to a section of people, two tests of reasonable classification must be satisfied. First, the classification must be founded on an intelligible differentia (difference capable of being understood), and second, the differentia (a distinguishing characteristic) must have a rational connection with the object (or outcome) sought to be achieved by the law.
Considering the LGBTQ+ community, when it comes to the question of marriage, people may appear as a different group, but only on the basis of their sex or sexual orientation. However, there is no reasonable connection between this classification and the “object sought to be achieved” by denying legal recognition to same-sex marriages.
The Union government’s logic that the decision will “ensure social stability” does not hold good. It is a utilitarian argument (maximum happiness of the greatest number) that ignores the individual rights of the LGBTQ+ community.
Society is already hostile towards this community. They have developed a sense of being estranged and an outsider. There is a feeling of meaninglessness and powerlessness. They cannot identify themselves with contemporary popular morality and public institutions. The community has been “otherised” in their own country.
According to Hegel, these are symptoms of “alienation”. Alienation may disintegrate a society, whereas, the government, quite strangely, seeks to find social stability in alienation.
Representative image. Photo: PTI
Public morality and constitutional morality
Article 15(1) of the constitution of India says that “the state shall not discriminate” against any citizen on the grounds of sex.
In Navtej Singh Johar (2018), the Supreme Court interpreted the Article to include prohibition of discrimination on the ground of sexual orientation and identity also. Denying the right to marry a person of one’s choice to the LGBTQ+ community is, thus, discriminatory. It contravenes the prohibition under the said provision.
Prohibition of discrimination on the basis of sex is also a part of India’s obligations under the international human rights instruments, namely the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.
Furthermore, the Supreme Court has time and again held (recently, in the 2018 Shakti Vahini case) that the right to marry a person of one’s choice is a manifestation of autonomy of choice, which is integral to the fundamental rights under Articles 21 (right to life) and 19(1)(a), (freedom of expression).
Thus, on the issue of same-sex marriages, public morality and constitutional morality are opposite to each other.
For long, when dealing with such clashes, the Supreme Court has been applying the constitutional provisions and preferring constitutional morality over public morality. This is because constitutional morality holds that the ideal of justice overrides any notion of social acceptance.
It is constitutional morality that must shape the law as it is not subject to fleeting fancies of every time and age. The cases of Navtej Singh Johar; Joseph Shine, and Sabarimala illustrate this position of the apex court.
The Union government argued that it has a compelling and legitimate state interest in not recognising same-sex marriages. However, compelling state interest must also consider constitutional morality, instead of public morality, as held in Navtej Singh Johar.
In the context of marriages, the heterosexual society presumes at least two things to be acceptable (or normal): first, marriages between heterosexuals only, as already stated, and second, and more importantly, the institution of marriage itself.
The very idea of marriage is considered to be normal and an inevitable part of life, despite it being oppressive to women in several ways. While arguing for the equality of the LGBTQ+ community, we should not lose sight of this important aspect of heterosexual normalcy.
Kailash Jeenger teaches at the National Law University, Assam.