This post is part of a series on legal advocacy involving marriage equality in India. Read other posts in the series.
Who Are The Petitioners?
The first listed petitioner is Abhijit Iyer Mitra. He is a gay man who has been an active member of the LGBTQIA+ community. He is a ‘commentator on security and foreign policy’ and currently a Senior Fellow at the Institute for Peace and Conflict Studies (Muckrack, Twitter). Giti Thadani is a lesbian woman and founder of the Sakhi collective journal of historical and contemporary lesbian life (Goodreads author page). Gopi Shankar Madurai is an indigenous rights and genderqueer and intersex activist (Wikipedia). G. Oorvasi is a transgender rights activist.
What Are They Asking For?
The petitioners are asking the Delhi High Court to declare that the right of same-sex couples to marry should be recognised under s 5 of the Hindu Marriage Act, 1955 (HMA). Though they use ‘homosexual’ and ‘same-sex’ in their prayer, earlier in their petition, they state their petition is for the benefit of both homosexual and transgender persons. This would mean people can solemnise or register their marriages under Hindu personal law if both of them are Hindu, Jain or Buddhist.
What Do They Argue?
The petitioners argue for recognising ‘same-sex marriages’ based on statutory interpretation, equality and non-discrimination, the right to marry, the right to privacy, the right to freedom of religion and for other policy and factual arguments.
Statutory intepretation. S 5 of the HMA allows for marriage between ‘any two Hindus’. The petitioners argue that as a matter of interpretation, this means that there is no bar on homosexual marriages.
Equality and Non-Discrimination. The petitioners state that these are two fundamental principles of international human rights law expressed in the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC). They also rely on the idea that international human rights law should apply universally: LGBTQ+ people are not asking for a special law but universal application of the law. Under the Indian Constitution, the petitioners argue that Article 14 (the right to equality) prohibits laws that are arbitrary or make unreasonable classifications: the denial of same-sex marriage would violate Article 14. Reliance was also placed on Navtej Singh Johar v Union of India.
Right to Marry. The petitioners argue that marriage is a universally recognised right and the right to marry a person of one’s choice has been recognised under Article 21 of the Indian Constitution. Currently, this choice is protected for heterosexual couples through mechanisms like the National Commission for Women, Domestic Violence Act and the police, but not homosexual couples, according to the petitioners. They rely on Shafin Jahan v Ashokan KM. They also place emphasis on the right to marriage under the right to a family life in the UDHR.
Right to Privacy and Right to Life. In addition to Shafin Jahan v Ashokan KM– where the Supreme Court held that marrying a person of one’s choice is a core part of privacy- the petitioners also rely on KS Puttaswamy v Union of India which confirmed the right to privacy as a part of the Indian Constitution under Article 21. The petition states that the question of who one marries is a part of privacy. It also relies more broadly on the right to life in the UDHR and ICCPR.
Right to Freedom of Religion. The petition briefly argues that since Hinduism does not ban LGBTQ+ marriages, any ban by statute would violate the freedom of religion under Article 25(1) of the Indian Constitution.
Other Policy and Factual Arguments. The petitioners submit that the lack of recognition for marriages leads to a loss of many benefits. They point out that several other countries have recognised same-sex marriages. Further, marriage has several benefits for physical and psychological health, especially mental health and social mobility, according to the petition. Currently, LGBT people are excluded from the ‘culture of marriage’. The petitioners also argued that the idea that marriage has always been heterosexual is historically inaccurate and that marriage is not just for procreation.
What Is The Petition’s Journey In Court?
Filed: 10 September 2020. (W.P.(C) 6371/2020)
Notice issued: 19 November 2020.
Lawyers: Represented by Raghav Awasthi in Court. Filings by Mukesh Sharma.
The Hearings. On 14 September 2020, the Solicitor General Tushar Mehta opposed the petition as Indian culture and law do not recognise such marriages, and that Navtej Singh Johar did not extend to same-sex marriages. The Court asked the Solicitor General to keep an open mind, but asked why the petitioners had not tried to get their marriage registered and come to the Court if it failed. The petitioners said many had already tried and failed. The Court asked them to file a document on this before further hearings.
On 19 November 2020, the Court heard the petitioners who argued that the HMA is gender neutral. This time, the Court issued notice, asking the Union of India to respond. The Court had already asked for a response in 2 other cases earlier, and decided to group these cases together for future hearings.
On 25 February 2021, after the Court disapproved of the Union’s delay in filing a reply previously, the Union of India filed its reply.
Two interventions have been filed in the case. One by the Sewa Nyay Utthan Foundation argues that same-sex marriage should only be recognised under secular law, or for all personal laws at once, not for the HMA alone. Another application asks for the proceedings in the case to be live streamed because it is a matter of national and constitutional importance.
Read the petition here (thank you to Abhishek Godi for the petition).
Mihir Rajamane 
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