The jurisprudence of same-sex marriage

The Chief Justice of India has referred petitions seeking legal recognition for same-sex marriages to a Constitution bench. The case is listed for final argument on 18 April 2023. A major question of law involved in the dispute on same-sex marriage is whether it will be brought within the ambit of the Special Marriage Act of 1954. The Union government has filed a counter-affidavit claiming that same-sex marriage will cause ‘havoc’ in the country by disturbing the balance of personal laws and prevailing social values. But this conservative perspective does not sit well with established jurisprudence. Nor does it square with a commonsense understanding of equality in the eyes of the law, and it is not able to make space for diversity or individual choice.

The Benthamite perspective

Jeremy Bentham in his seminal treatise An Introduction to the Principles of Morals and Legislation (1781) stated: ‘Nature has placed mankind under the governance of two sovereign masters—pain and pleasure. It is for them alone to point out what we ought to do, as well as to determine what we shall do. On one hand, the standard of right and wrong, on the other the chain of causes and effects, are fastened to their throne.’ Bentham argued that the purpose of law must be to provide the maximum happiness to the maximum number of people in the community.

He further elaborated: ‘The community is a fictitious body, composed of individual persons who are considered as constituting its members. The interest of the community then is the sum of the interest of the several members who compose it. It is vain to talk about the interest of the community without understanding the interest of the individual. A thing is said to promote the interest, or to be [in] the interest, of an individual, when it tends to add to the sum total of his pleasure, or, what comes to the same thing, to diminish the sum total of his pains.’

Bentham held that the principle of utility may also be described as the greatest happiness principle, in that it asserts that the only morally right and proper goal of action is to achieve the greatest happiness of all individuals whose interest is affected by the action. The conundrum of same-sex marriage must be examined through the prism of the Benthamite principle of morality and law-making. While adjudicating the legality of same-sex marriage, the pain and pleasure of same-sex couples must be given primacy over the anxieties of the so-called defenders of culture.

A breach of the social contract

Lockean social contract theory is the basis of classical liberalism and constitutionalism. John Locke emphasised three fundamental natural rights namely life, liberty, and property. These rights, he argued, exist in the state of nature and beyond the long arm of any government. Protection of life, liberty and property is the gist of constitutionalism, and governmental powers are defined and limited for this purpose by constitutional order. A constitution is a social contract forged between the citizenry and the State. The US Constitution in its Preamble says the Constitution was framed by ‘We the People of the United States’ to establish ‘Justice’ and secure the ‘Blessings of Liberty’ to themselves and their posterity. The Indian Constitution, likewise, is a pact between ‘We the People of India’ and the ‘Republic of India’ to ensure ‘justice—social, economic and political’. Liberty, Equality and Fraternity are the paths to Justice.

Our Constitution upholds the right to life and personal liberty under Article 21. This is the statute that made possible the right to privacy and the decriminalisation of homosexuality. The Supreme Court in Francis Coralie vs Union Territory of Delhi (1981) underscored that the right to live includes the right to live with human dignity and all that goes along with it including the right to express oneself in diverse forms and mixing and mingling with fellow human beings. Denial of the right to marriage, irrespective of one’s sexual orientation, is by that token an affront to the citizen’s right to live with human dignity.

The founding fathers of the USA replaced the Lockean right to property with the ‘pursuit of happiness’ in the American Declaration of Independence. In Obergefell vs Hodges (2015) the Supreme Court of the United States held that marriage is a pursuit of happiness and the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment of the Constitution. ‘It is due process [that] has made Article 21 a robust fundamental right and which has today enabled the triumph of individual freedom […] By the time the Indian Constitution came to life in 1950, the due process guarantee was absent from the Constitutional text. Nevertheless, from the ashes of unsavoury rejection by the Drafting Committee, Due Process against all odds found its way into the Indian Constitution,’ writes Rohan J. Alva, in Liberty after Freedom: A History of Article 21, Due Process and the Constitution of India (2022). Denial of the right of marriage to same-sex couples would be a breach of the constitutional social contract and its underlying due process clause.

John Rawls, the American political philosopher, argued that people had to choose their justice principles under a ‘veil of ignorance’. It is an experiment under which individuals would know nothing about their particular positions in society. Under the ‘veil of ignorance’, imaginary people would not know their own age, sex, race, social class, religion, abilities, preferences, life goals, or anything else about themselves. They would also be ignorant of the society from which they came. They would, however, have general knowledge about how such institutions as economic systems and governments worked. Rawls argued that only under a ‘veil of ignorance’ could human beings reach a fair and impartial agreement (social contract) as true equals not biased by their place in society.

We have to undergo a ‘veil of ignorance’ experiment and forget our sexual orientation and moral and religious biases to adjudge the LGBTQ+ community’s right to same-sex marriage.

FAISAL C.K. is undersecretary (law) to the government of Kerala. Views are personal