This post is part of a series on legal advocacy involving marriage equality in India. Read other posts in the series.
Who Is the Petitioner?
Harish Iyer (Twitter, LinkedIn, pronouns: he/she) is an LGBTQIA+ activist and columnist. She is part of the Core Advisory Group on LGBTQIA+ issues formed by the NHRC. She has previously challenged Section 377 and is a popular advocate for queer rights on television and public platforms.
What Is She Asking For?
Harish Iyer is asking the court to declare that the Special Marriage Act, 1954 (‘SMA’) applies irrespective of gender, sexual orientation and sexual identity. Particularly, she is asking s 4(c) to be declared unconstitutional since it states the age requirements for ‘the male’ and ‘the female’ which implies a heterosexual marriage.
What Does She Argue?
Harish Iyer argues that marriage provides various cultural and tangible benefits and that the recognised right to marry should be extended beyond heterosexual couples. She also relies on the right to equality and freedom from religion besides arguing for a favourable interpretation of the SMA.
Nature of Marriage. It is a declaration of commitment that provides not just social recognition and validity but social benefits, respect and self worth. It is a public indication of moral standing. It entails State support in child-rearing, adoption and surrogacy; exclusive facilities such as health insurance, pension, bereavement leave, compassionate appointment; and legal benefits like inheritance, joint tax and property ownership. So denial results in both cultural and tangible harms. It is not a zero-sum game.
Right to Marry. The right to life, freedom of speech, right to privacy and choice, equality and non-discrimination and autonomy all entail a right to marry (Lata Singh, Asha Ranjan, Shakti Vahini, Shafin Jahan, In Re: Women Says Gang-Raped…). A denial leads to both dignitarian and material harms and so any restriction must be rational and proportional.
Principles of Interpretation. The SMA’s purpose is to provide individuals with freedom. Religious beliefs do not apply to the SMA. The main clause under s 4 provides for marriage between ‘any two persons’ and is not restrictive. Because ss 2(b) and 4(c) imply only heterosexual people can marry, it creates an ambiguity that can trickle down to magistrates. s 4(c) is unconstitutional because of its language, and so it cannot be used to interpret the main provision. Even if it is constitutional, it should not be used to restrict marriage to heterosexual people since that interpretation would be discriminatory. Regardless, the General Clauses Act, 1897 says ‘man’ can include ‘woman’ and ‘the’ can include ‘a’ unless the context otherwise requires. This can be used to interpret s 4(c) to include queer marriages. Transgender men and women should be included.
Equality. Article 15(1) prohibits discrimination on the basis of gender and sexual orientation which is part of ‘sex’ (Navtej, NALSA). The right to equality under Article 14 requires a valid justification for any classification. Social mores cannot be such a justification when it comes to the choice of partners (Shafin Jahan). The current law is manifestly arbitrary.
Freedom of Religion. Restricting marriage to heterosexual people is a religious belief and that cannot be endorsed by a secular state (Indian Young Lawyers Association). This is especially true for the SMA which was intended as an alternative to religious personal laws.
Lawyer: Dhruva Gandhi
The petition is on file (Courtesy of Akhilesh Godi).
Mihir Rajamane 
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