The Conundrum of Same Sex Marriage and Religious Liberty in India

Introduction

The Judgment in Navtej Singh Johar v. Union of India is marked as the first step in realisation of equality to the LGBT community. Overruling the catastrophic decision in the case of Suresh Kumar v. Naz Foundation, the apex court decriminalised the same sex relation which was a penal offence under Section 377 of the Indian Penal Code then. But no judicial opinion was provided in recognising the same sex marriages nor there is a settled legal position to that effect. Since marriage is the only socially acceptable form of intimate relationship in India, sanctifying the marriages of LGBT community becomes necessary to protect them from being inflicted with unnecessary harm. Since marriage is more of a religious institution in Indian conservative society the same sex marriages happen to conflict with religious liberties. But it is sane to view the same sex marriage through the lens of the equality scheme before discussing the religious liberty concept.

The Case Of Marriage Equality

It was in National Legal Services Authority v. Union of India and Ors, the apex court laid down that the expression ‘sex’ in Articles 15 and 16 is not limited to biological sex of male and female but extend to those who do not consider themselves to be either male or female. It was later reiterated in the 2018 judgment that to discriminate on sexual orientation of any kind to be violative of Article 15 of the Constitution of India only to imply conferring and safeguarding their constitutional rights. The Supreme Court has explicitly declared the right to marry a person of one’s choice to be an integral part of right to life. This right to marry is one of the most intimate and personal decisions that any human being can make. It forms the indispensable part of his/her right to privacy and therefore any government interference or opinion of any substantial class of people cannot warrant a person’s choice. The right to privacy encompasses the right to be let alone for a citizen in the matters of his/her marriage, family, procreation, motherhood, childbearing and education among others.

The claim that procreation is the reason for solemnising the marriage does not fit into the scheme of the existing marriage laws and is rather outdated. The order of the nature has changed and marriage cannot be only equated with the object of procreation. If that was the case, all the marriages that culminated in impotency should be declared null and void. Also, The Hindu Marriage Act, 1955 use the phrases “persons” and “parties” which explains it’s extant and capacity to interpret it beyond heterosexual or cis-gender marriage to sanction homosexual marriages. Inability to conceive a child does not vitiate the right to marry. The same sex marriages through legal lens seem perfectly sane, yet, the socially accepted centrality of marriage in religion is a menace that might be troubling for many reasons since most of the legal rights post marriage seem to flow through personal law regime viz. property rights like succession, inheritance and matrimonial rights like divorce, adoption etc. It also tend to affect the religious liberty of an individual.

The Case Of Religious Liberty

Religions, customs, usages are the values which people in Indian society tend to identify themselves with and are ready to do everything to protect them. Religion is one of the beliefs personal to the individual that binds him with his conscience and the moral and basic principles regulating the life of a man had constituted the religion as understood by our constitution. Religious liberty or freedom of conscience under Article 25 of the Constitution of India enables a person or religious institutions to lead their lives in accordance with the faith they supposedly believe but that does not confer a right to deprive others’ personal liberty.

Similarly what supposedly comes in the way of same sex couples is these religious institutions’ right to follow their faith should not be deprived of forcing upon them to recognise same sex marriage by those who actually profess heterosexual normativity. To add further the ceremony of solemnisation of marriage is directly associated with the religion. These religious liberty implications have to be carefully reconciled when giving a judicial opinion or during democratic bargaining of law making lest it might lead to violent protests and chaos during enforcement (as observed during the enforcement of Sabarimala judgment).

Remedying The Conundrum

Any marriage shall result into two relationships what are termed as legal relationship and religious relationship. Legal relationship encompasses all the legal rights viz. maintenance, divorce, inheritance, succession, custody, adoption, guardianship (so long as they are secular) and all those associated with marriage including pension benefits. Religious relationship on the other hand appraise marriage as a sacred ceremony and adherence by the couple to their religious faith. The marriage of same sex couple falls well within the scheme of legal relationship but fall short of qualifying religious one (hence not a marriage) and moreover the couple would face a tough time in enforcing matrimonial rights as they fall under the purview of personal laws.

It is the duty of law-making body to carefully construct both the liberties in a balanced manner when framing the laws on same sex marriage. Though constitutional morality holds premise over societal morality in theory it is well known fact that religion trumps everything in our country. Therefore an affirmative secular action of the state would be a possible solution in remedying this conundrum. The realization of Article 44 of the Constitution of India to implement Uniform Civil Code would resolve not only this problem but all such similar ambiguities.

The state should not force upon any person, temple, mosque, church or any institution of religious character to solemnise same sex marriages. Any such religious institutions and organizations that seek advancements in religious beliefs and practices and are willing to volunteer for solemnisation ceremony of same sex marriage should be left unfettered. The state also has the liberty to form a body or organisation of a religious character that shall uphold the individual liberty over the religious liberty in recognizing the religious relationship in the marriage of the same sex couples. The final interpreter of the Constitution too should while protecting the right to marry of the LGBT couple should also heed to the freedom of conscience of an individual.

This article has been written by Harish Kugunavar, 4th Year student at Karnataka State Law University’s Law School, Hubballi.

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