Is Nepal Going to Have the Same Fate as India on Marriage Equality?
/
Gursimran Kaur Bakshi
South Asian University, New Delhi
In South Asia, marriage equality jurisprudence has emerged recently. While Sri Lanka plans to decriminalise homosexuality, India and Nepal have already done this and are now debating marriage equality. The right to marry is a human right and is (mostly) exercised through a legislative articulation of the constitutional principles of privacy, autonomy and dignity. Recently, the Supreme Court of India (SCI) heard a batch of petitions filed by non-heterosexual couples challenging their exclusion from the statutory right to marry under secular marriage legislation, the Special Marriage Act, 1954 (SMA).
In 2018, the SCI decriminalised homosexuality in Navtej and held: “History owes an apology to the members of this community… for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries”. The government, however, says that marriage as a sacrosanct institution “necessarily” presupposing a union between a man and a woman and that support for non-heterosexual marriages is an “urban elitist” view.
According to the petitioners, marriage is a “bouquet of rights” from which consequential benefits flow. They argued that after the SCI decriminalised homosexuality, the government was obliged to take affirmative action to recognise the marital rights of non-heterosexual couples, but they failed at this. On 17 October 2023, the SCI unanimously held the following:
There is no fundamental and unqualified right to marry;
The SMA is not unconstitutional for excluding non-heterosexual couples;
Transgender and intersex persons in heterosexual relationships have a right to marry under the Transgender Persons (Protection of Rights) Rules 2020.
By 3-2, the SCI held:
Non-heterosexual couples have no fundamental right to form associations under Articles 19(1)(a) (free speech) & (c) (freedom to form associations), 21 (life and personal liberty) and 25 (freedom of conscience) of the Indian Constitution;
Non-heterosexual couples do not have a right to joint adoption under the Juvenile Justice (Care and Protection of Children) Act, 2015.
The SCI Judgment is Manifestly Arbitrary
The judgment challenges SCI’s rights-based jurisprudence and creates legal uncertainty. Firstly, the SCI was not asked to determine whether there is a fundamental right to marry. The limited issue before it was whether the exclusion of non-heterosexual couples from the statutory right to marry under the SMA violates the equality code under Articles 14 (equality), 15(1) (prohibition of discrimination), 16 (equality of opportunity), 17 (untouchability) and 21 of the Indian Constitution.
The Article 14 test requires that the classification of persons must be based on intelligible differentia and have a rational nexus with the object sought (Anwar Ali) and that it must not be manifestly arbitrary (Shayara Bano) in relation to the fundamental rights guaranteed under the Indian Constitution. The SCI, instead of testing this exclusion on the constitutional trinity of right to choice (Shafin Jahan), privacy (Puttaswamy) and dignity (Shakti Vahini), declared that there is no fundamental right to marry. Further, despite the SCI observing that “its [state’s] characterising marriage…as a permanent and binding legal relationship recognised …between heterosexual couples only… impact[s] queer couples adversely,” it fails to remedy the discrimination.
It should be added that a court in Hong Kong recently recognised same-sex unions on the ground that in the absence of marital rights, the lack of any alternative framework to recognise non-heterosexual unions as “committed, loving, stable and long-term relationships” could be an occasion of “arbitrary interference” in the ordinary conduct of the private lives of those individuals and violates Article 14 of the Hong Kong Bill of Rights. This is also why it is difficult to reconcile that the SCI failed to unanimously agree that there is a fundamental right to intimate association. During the marriage equality hearings, the SCI said: “Decriminalising homosexuality necessarily contemplates same-sex couples in stable, marriage-like relationships”.
Second, while upholding the constitutionality of the SMA, Bhat J, who authored the majority judgment, wrote that the legislation makes a classification between heterosexual and non-heterosexual couples based on intelligible differentia. Bhat J’s reasoning is flawed because, although it is true that the SMA, by necessary implication, applies to heterosexual couples only, the object of the enactment is to protect ‘inter-caste’ and ‘inter-religious’ marriages, which were considered social disabilities. Interestingly, like ‘caste’ and ‘religion’, ‘sexual orientation’ is also a social disability (NALSA) under Article 15(1). There is no reasonable justification why the legislation could recognise marriages irrespective of caste and religion but not based on sexual orientation.
Bhat J further wrote – in response to the petitioners’ argument that binary words like ‘husband’ or ‘wife’ in the SMA should be replaced with ‘spouse’ – that a gender-neutral interpretation of the SMA is not possible. According to him, this would expose women to “unintended vulnerabilities”. This is an erroneous assumption. Many feminist scholars believe that gender non-conforming marriages enhance the rights of all communities, including women because they challenge the gendered role assigned in traditional marriages. Furthermore, although the SCI recognised transgender persons’ right to marry, the Madras High Court did this first in 2019. Unfortunately, by requiring transgender persons to be in heterosexual relationships to be entitled to marry, the SCI reinforces the ascriptive characteristics of gender identity.
Beyond India
An inquiry into our neighbouring jurisdiction, Nepal, becomes crucial because the SCI has twice relied upon Nepalese jurisprudence on queer rights. In the Navtej judgment, the SCI relied on the 2007 Supreme Court of Nepal’s (SCN) Sunil Babu Pant judgment, which not only decriminalised homosexuality but extended legal recognition to third-gender persons. While the SCN did not deal with marriage equality per se, it observed that the right to marry is an inherent right based on the consent and free will of the parties.
The SCI further referred to the March 2023 judgment of the SCN, which ordered Nepal’s Ministry of Law and Justice to prepare legislation on marriage equality. But does Nepal qualify to be the beacon of hope for India? Nepal was the first South Asian country to decriminalise homosexuality in 2007. Since then, on many occasions, the Nepalese courts have progressively interpreted the rights of gender and sexual minorities. After the March 2023 judgment, the SCN also ordered the government to establish a transitional mechanism for registering non-heterosexual marriages.
However, despite the SCN taking a progressive stand, the Nepalese government has failed to do anything in reality. After the Sunil Babu Pant judgment, the Nepalese government set up an expert committee to study the feasibility of enacting marriage equality legislation in 2010. During this time, the new Nepalese Constitution (which came into force in 2015) was being drafted, and there were claims that the government was extending fundamental rights to gender and sexual minorities, including the right to marry. In 2014, the government promised to introduce a Bill recognising non-heterosexual marriages.
The Bill was never introduced, but the right to equality guaranteed under Article 18 of the Nepalese Constitution was extended to gender and sexual minorities. In 2015, the expert committee set up in 2010 recommended legalising non-heterosexual marriages. The committee further recommended repealing or amending criminal and civil laws that continue to use binary language and criminalise “unnatural sexual intercourse”. Despite this, the recommendations were not implemented when the Nepalese government introduced new criminal and civil laws in 2017.
Recently, two lower courts in Nepal passed orders not recognising the marriage of non-heterosexual couples under Section 77 of The National Civil (Code) Act, 2017 (2074), despite precedents set by the SCN. Despite the two jurisdictions adopting entirely different approaches to marriage equality rights, both countries are walking down the same path. With a review petition filed before the SCI on 1 November 2023 over its marriage equality judgment, only time will tell which country will become the beacon of hope for gender and sexual minorities.
Gursimran Kaur Bakshi is an LLM student in international law at the South Asian University, New Delhi.
Suggested Citation: Gursimran Kaur Bakshi, ‘Is Nepal Going to Have the Same Fate as India on Marriage Equality?’, IACL-AIDC Blog (07 November 2023) https://blog-iacl-aidc.org/2023-posts/2023/11/6/welcome-to-the-supreme-court-of-india-now-go-home-how-india-failed-to-protect-gender-and-sexual-minorities
![Xx1088_-_Seoul_city_nightscape_during_1988_Paralympics_-_3b_-_Scan [test].jpg](https://images.squarespace-cdn.com/content/v1/5af3f84a4eddec846552ea29/1527486925632-3VZP3ASLAHP1LJI0D9NJ/Xx1088_-_Seoul_city_nightscape_during_1988_Paralympics_-_3b_-_Scan+%5Btest%5D.jpg)
