On April 18 2023, the Supreme Court of India will hear more than ten petitions pending before it is filed by Utkarsh Saxena and others challenging the Special Marriage Act 1954. The Special Marriage Act, despite being regarded as progressive and ruffling conservative feathers in its current form, uses terms like ‘male’ and ‘female’, ‘man’ and ‘woman’, ‘bride’ and ‘bridegroom’. It, therefore, limits marriage, interpreted by the Supreme Court as a fundamental right in various instances, to heterosexual unions only, thereby excluding same-sex couples and transgender couples. Not only that, a few sections of the SMA stipulate that those seeking to be married under it, who even now are often vulnerable couples from different castes or religions, have to inform the Marriage Officer of their district and put up a public notice about their marriage at least thirty days before the intended date of marriage, which can then be contested by absolutely anyone. Not only does this invade the privacy of two consenting adults, but it also further endangers and discriminates against those who might not enjoy larger social protections, based on arbitrary objections.
As we wait for the Court to hear the petitions, Asian Voice spoke to Utkarsh Saxena to make the matter more lucid for our readers. Utkarsh is currently pursuing his PhD in public policy at the University of Oxford. He has also been an attorney at the Supreme Court of India for over a decade. He and his partner Ananya Kotia have jointly filed a petition before the Supreme Court of India to make the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969, non-discriminatory regarding the gender, sexual orientation, and sexual identity of the respective partners, and to do away with the notice-and-objection regime enabled by compulsory public declarations required by both the Acts.
On January 6 2023, the Supreme Court transferred to itself all petitions to High Courts seeking legal recognition for queer marriages, for the impending hearing. Considering the strong words that the Government of India continues using to justify its claims on legislating the procedure, it is imperative to clear doubts regarding the jurisdiction of the Supreme Court. This Saxena gladly does for our readers.
The petition
“Firstly, the overall structure governing marriage and families in India is divided into personal laws and secular laws. The personal laws include Hindu Marriage Act, Muslim Marriage Act, and succession and inheritance laws, among others, whereas the secular Act is the Special Marriage Act. We have challenged only the secular law because the whole point of the secular law is to allow people who can't get married within the personal law framework to be married under this special marriage framework. So, this is not going to come into conflict with any of the personal, religious or community frameworks (which is one of the objections of the Indian government). Now within this special marriage framework, even though the Special Marriage Act was passed by Parliament, it is not in conformity with the Constitution as it withholds fundamental rights based on people’s sexuality. The way judicial review works is that if the Supreme Court observes that there are some aspects of a statute that conflict with certain constitutional values, then it will either strike them down, or it will interpret them as to resolve that conflict so that they no longer are violative of the Constitution. Those provisions of the Special Marriage Act which have gendered words or have indications of sexual orientation should be interpreted in a way that they are agnostic of gender or sexual orientation, and are only about any two persons. And when the Supreme Court does that interpretation, then there's no role of Parliament.”
Necessity of pursuing the right to marry
As for the necessity of pursuing the right to marry in a country where the number of single people is rising by the day, Saxena says that that is part of the point. “Marriage is a prerequisite for the range of rights in Indian society that flow from the state, whether it is the right to inheritance of the properties and assets of your partner, the right to file joint property taxes and income taxes and have a joint bank account, or the right to make medical decisions on behalf of your partner. Right now, it is only next of kin and today in the law, queer partners are not next of kin, because that's how all of these different regulations and laws are formulated. So, marriage is a pretty fundamental prerequisite to access a range of rights. If I adopt a child, it will only be my child and not my partner's. You could go after each and every law that governs couples in this country, but that would be enormous. Whereas if you go after the prerequisite, that would be a much more straightforward way to do it. And secondly, yes, traditionally, marriage is an act between a husband and wife. But that's exactly the point- that these traditional definitions have changed. Once upon a time, child marriage used to be legal in this country. And as things progress and society advances, we believe this is also a change that needs to be built into the definition of marriage so that the rights available to heterosexual couples in the society are also available to queer people.”
What will a change in law do?
A change in the law alone will not change mindsets, but it will at least stop people from pulling up and debasing rational and capable adults which the SMA at the moment facilitates, to begin with. “Our simple plea right now is that the rights which are available to straight people should also be available to queer people. For legal lawsuits, we have to be very specific. And today our specific claim is that the current law is discriminatory because it allows only some people a right to choose. So we are fighting a legal battle, where we are in the Constitutional Court of India, which is a court of law, and asking it to interpret things differently. We are not foregrounding the social and political implications at the moment. For instance, parts of Section 377 were decriminalized in 2018. But that doesn't mean that the social or political battle has been won. There's still massive phobia and bigotry. While the hope is always that litigation would catalyze some of the social and political changes that we want to usher in, our priority now is to ensure legal change so that people can no longer hide behind the law with their bigotry. The stigma of the law has to be taken away.”
The future
So what does the future look like for the LGBTQ+ petitioners like Utkarsh, who at the moment are deprived of multiple legislations available to straight people?
“If it's in our favour, that will be great news for the community as it will ensure our civil rights for the first time. I'm sure many queer couples will now legally get married and be more involved in and accepted by society. And depending on how the Supreme Court defines it, it might take care of all related rights- inheritance, adoption and surrogacy, wages and gratuity. And if it takes care of those, then I guess a big chunk of the litigation ends there. But if it doesn't, then we follow on the legislation for secondary rights. Whether we start off the decision tree depends on whether or not the judgement is favourable. If it goes against us, then, you know, so be it. The battle for civil rights always has ups and downs. With the Section 377 litigations, we were first unsuccessful before we were successful. And in this case as well, if we are unsuccessful, we will go back to court when we think it's a better time. But the civil, social and political struggle for queer rights will continue. And hopefully, there will be another day when the Court will be more considerate, if not this time.”
