We are socialized to view marriage as the ultimate expression of commitment to one’s partner. It is inextricably linked to cultural and religious traditions, and is a legally-significant relationship. The decriminalization of homosexuality in Navtej Singh Johar v. Union of India was based on an individual’s right to choose their partner. Marriage equality is a logical extension of this right, as it enables the solemnization of this choice in the eyes of society.
In 2021, the Delhi High Court (“HC”) issued notice in three petitions seeking recognition of same-sex unions under various personal laws. Halfway around the world that same year, the European Court of Human Rights (“ECtHR”) imposed a positive obligation on its member-states to recognize same-sex unions in Fedotova and Others v. Russia.
This article examines this decision to throw light on jurisprudence that the Delhi HC may consider.
The Delhi HC Petitions
The first petition seeks recognition of same-sex unions under the Hindu Marriage Act, 1955 on the ground that it does not distinguish between same-sex and heterosexual couples. Section 5 of the Act states that a marriage may be solemnized between “any two Hindus”, and thus does not forbid same-sex unions.
The second petition was filed by a woman whose application to marry her partner under the Special Marriage Act, 1954 was rejected. She has challenged this refusal as violative of her right to liberty under Article 21 of the Indian Constitution.
The third petition was filed by an Overseas Citizen of India (“OCI”), seeking the recognition of his partner as his spouse, so that he may apply for an OCI card under the Citizenship Act, 1955. The petitioner relied on Section 7A, which affirms the eligibility of the spouse of an OCI card holder, and does not distinguish between same-sex and heterosexual couples.
The Central Government has opposed recognition of same-sex unions in all these petitions on two main grounds.
First, the institution of marriage has a ‘sanctity’ and the Indian conception of a ‘family’ comprising of a husband, wife and their children cannot be compared to live-in relationships of same-sex couples. The Centre relied on social morality and contended that the institution of marriage is associated with “age-old customs, rituals, practices and societal values”, which only recognize unions between biological men and women.
Second, the State has a legitimate interest in limiting legal recognition of same-sex unions, as marriage is not merely a private choice, but a public institution as well.
Presently, the HC is hearing the petitioners’ application for the livestreaming of the arguments.
Overview of Indian Jurisprudence
1.Right to Choose One’s Partner
The plea for the recognition of same-sex unions under personal laws is well-founded in various pronouncements. In Shakti Vahini v. Union of India, the Supreme Court (“SC”) held that an individual’s right to marry a person of their choice is a fundamental right under Article 21 of the Constitution. The SC has further recognized the choice of marriage partner as the exercise of an individual’s right to freedom of expression under Article 19 in Shafin Jahan v. Asokan.
The Centre’s argument characterizing marriage as a matter of public interest also rests on shaky reasoning. It overlooks the ruling in Justice (Retd.) K S Puttaswamy v. Union of India, where the SC held that matters concerning marriage are protected by the right to privacy under Article 21.
2. Recognition and Protection of Same-Sex Relationships
The Uttarakhand High Court upheld the rights of a same-sex couple in a live-in relationship and emphasized that the intimacy of the choice of partner and marriage are outside the control of the State. The High Courts of Allahabad and Madras have also granted protection to same-sex couples against harassment that they faced against pursuing their relationship. In Deepika Singh v. Central Administrative Tribunal & Ors., the SC opined that “atypical manifestations of love and of families”, including queer relationships, must be legally protected.
While the sentiment is notable, it is a far cry from equal marriage rights.
3.Relevance of ECtHR’s Jurisprudence on Indian Law on Same-Sex Relationships
In Navtej Johar, the SC appraised the ECtHR’s jurisprudence under Article 8 of the European Convention on Human Rights (“ECHR”). Article 8 protects the right to respect for private and family life. State interference with this right is prohibited unless it is “necessary in a democratic society”. This parallels the right to privacy in personal spheres of life, as envisaged under Article 21 of the Indian Constitution.
The Court cited Dudgeon v. United Kingdom, where the ECtHR held that the criminalization of homosexuality under Irish law violated Article 8. The State’s arguments in this regard were two-fold. First, that both Christians and Muslims in its population opposed same-sex unions and second, that the provision criminalizing homosexuality was a dead letter of the law and no prosecutions were initiated under it anymore.
The first argument was dismissed as insufficient to meet the Article 8 standard for a violation that may be allowed as “necessary in a democratic society”. The second argument was also held to be unpersuasive. The very fact that this provision was weaponized to mete out police harassment was held to be violative of Article 8.
The Supreme Court also quoted Oliari and Others. v. Italy. Here, the ECtHR held that the Italian legal framework of marriage violated Article 8 because it provided nominal recognition of same-sex relationships without access to the structural benefits of marriages.
It is important to note that the ECHtHRcarved out a margin of appreciation for how Italy may facilitate such access. NeverthelessOliari can be read to mean that an Article 8-compliant legal framework must provide for the recognition of same-sex unions such that family life is facilitated by the legal framework. However, this need not necessarily be through the extension of marriage laws to same-sex couples.
A similar consideration of the ECtHR’s jurisprudence on same-sex unions would also be instructive.
Lessons from the EctHR: Fedotova & Ors. v. Russia
The applicants in Fedotova were same-sex couples who were refused the right to register their marriages in Russia. Under Russian law, mutual consent between a man and a woman is essential. The Russian Constitutional Court ruled that the purpose of marriage is child-rearing and hence, the requirement of consent was envisaged only in the context of a marriage between a biological man and woman.
Before the EctHR, Russia argued that its actions were in the interest of the community, which disapproved of same-sex unions, and “protection of minors”. This is a reference to Russia’s “gay propaganda laws”, which prohibit dissemination of information about homosexuality to minors. They are effectively used to ban any public expressions of homosexuality and crackdown on pride parades and protests by LGBTQ+ activists. The ECtHR found these laws to be violative of the ECHR in Bayev and Others v. Russia.
These community interests were rejected as insufficient to prevail over the applicants’ rights. The ECtHR relied on several precedents to hold that making minority rights are made conditional on majoritarian acceptance would be against the spirit of the Convention’s aim to secure public order.. The logical extension of this principle, as articulated in the SC’s analysis of constitutional morality vis-à-vis social morality in Navtej Johar, obliges the state to recognize same-sex unions despite countervailing public sentiments.
Further, the ECtHR imposed a positive obligation on member-states to safeguard same-sex couples’ right to family life under Article 8. It noted the non-recognition of their unions prevented them from availing housing and financing programs, visiting their partners in prison and exercising inheritance rights. Thus, Fedotova goes beyond the negative obligation prohibiting discrimination, and obliges States to take active measures to enable individuals to effectively exercise their right to privacy in matters of family.
However, the ECtHR afforded a margin of appreciation to Russia to decide how it would legitimise same-sex unions in accordance with its social ethos. This margin has arguably been afforded because the ECtHR is a supranational body. This carve-out is not applicable to a potential ruling by the Delhi HC, since it is a national court.
Fedotova is based on the foundation laid in Dudgeon and Oliari. Considering the principles in Navtej Johar largely parallel Article 8 jurisprudence, its application shows that the Centre’s arguments do not hold water.
Its first argument on societal morality is similar to the Russia’s submission in Fedotova. However, this cannot be a ground to restrain a minority group from exercising their rights in the sphere of family life. The Centre’s contention on marriage as a public institution is also ill-conceived. As observed by the ECtHR, legal recognition of same-sex unions does not affect “traditional marriages”, as it does not prevent heterosexual couples from entering into marriages and exercising their own rights. So even if marriage is considered a public institution, the State’s interest in preserving it remains unharmed.
Further, carving out a positive obligation to protect individuals’ right to privacy with respect to family matters is imperative. It can act as an impetus for the Centre to legally recognize same-sex unions, and ensure same-sex couples are able to access the legal benefits available to heterosexual couples post-marriage.
(This post has been authored by Soundarya Rajagopal and Snigdha Ghosh, fourth-year law students at Gujarat National Law University.)
Cite As: Soundarya Rajagopal and Snigdha Ghosh, ‘Legal Recognition of Same-Sex Unions in India: Notes from Fedotova and Others v. Russia’ (The Contemporary Law Forum, 16 November 2022) <https://tclf.in/2022/11/18/legal-recognition-of-same-sex-unions-in-india-notes-from-emfedotova-and-others-v-russia-em> date of access.
For instance, see paragraphs 116, 119, 122 and 160 in Navtej Johar. ↑