Analysing Gay Rights in India post the Navtej Singh Johar Judgment

– Rattanmeek Kaur

(IInd year, Gujarat National Law University,

Gandhinagar)

INTRODUCTION

After the Navtej Singh Johar Judgment, homosexual relationships have finally been legitimised. Homosexuals can now openly be in relationships, without any fear of penal charges. However, only the legitimisation of relationship will not entirely solve the problem. Indian society on a whole is still not very open to such relations, a lot of people treat it as a taboo, consider it unnatural, against the order of God, and sinful. Also, India is a country with diverse religious practices and personal laws are mostly governed by these religious practices and customs, and most of the religions vehemently disapprove of these relations. Nonetheless, we can see this judgment as a step towards making people more tolerant and accepting towards homosexual relationships.

Next question that the Government and Judiciary will face is whether Homosexual Relationships should be given the status of “Marriage”? Can same-sex relations qualify as marriages, or these are simply relations where people cohabitate? If such relations are given the status of marriage then which set of laws should govern such marriages? If current laws can efficiently regulate same sex marriages? The legal and legislative debates about the legalisation of same-sex marriage involve many unresolved – and maybe unsolvable – controversies such as the definition of marriage, the meaning of family, the notion of morality, the right of privacy, the influence of religion, the scope of civil rights and the government policies with respect to these issues.[1]

MARRIAGE AS AN INSTITUTION:

We first need to define marriage as an institution. It is a complex set of personal values, social norms, religious customs, and legal constraints that regulate a particular intimate human relation over a life span.[2] Or we can say marriage is a long-term voluntary agreement of private parties for the purpose of joint production and consumption. Husband and wife exchange spousal service and invest – in reliance on the commitment they give to each other – in asset specific to the marriage. Meanwhile, they forgo opportunities for marriage and other activities.[3]

Even though it is a private institution, it has been regulated by society, depending on the specific time and history, religious perceptions, legal rules or customs, and norms. As these rules norms and customs change over the period of time, marriage also evolves and changes. It has changed its meaning over the period of time, as society has become more accepting and tolerant. In past inter-religion, inter-caste marriages, were not allowed, polygamous marriages were allowed. Grounds for divorce and rules for divorce have also changed over the time (triple talaq being held as unconstitutional). The gender roles in a marriage have changed. Yet certain elements of the institution of marriage have remained relatively constant for centuries.[4] Marriage being a heterosexual union (only), is one such aspect. Since it has historically been viewed as a heterosexual union, same-sex relationships are precluded from the definition of “marriage”. People have had this belief that any kind of sexual intercourse except for procreation is unnatural and should not be allowed. Therefore, making same sex marriages one of the biggest taboos in society.

There are two basic propositions for the purpose of marriage. One is that two individuals who love each other and want to live together in a long lasting, stable relationship which is economically efficient. On the other hand, it is argued that marriage is primarily (but not exclusively) designed to regulate procreative behaviour because the private incentives of men and women at various points in their life cycles are often incompatible with the social objectives of the marriage.[5] Thus, people against same sex marriages argue that as marriage as an institution was established only for procreation and child rearing, so in same sex marriages partners are incapable of procreation, hence there cannot be a legitimate marriage between them. An objection against this argument is that infertile couples, elderly heterosexual couples (who are no more capable of procreation), people who do not want children in a marriage as a personal choice are nonetheless allowed to marry. These cases, however, do not affect the ex-ante presumption that marriage will be procreative, which requires legitimate sex to take place within the marriage. That ex post a couple remains childless does not challenge the presumption and intention of the institution.[6]

Next argument is that the order of nature is to grow, and for that procreation is essential. Therefore, the social interest lies in the fact that an ideal union will be one, which aims at procreating. But we need to understand that there are times when we need to put individual autonomy over the social interest, private incentive above social incentive. Also, the homosexual population is minuscule, thus their union will not affect the process of growth drastically.

Another argument against same sex marriages is that more and more people will become homosexuals. Most people don’t want their children to become homosexuals, and according to Posner, this aversion is a factor in the utility calculus.[7] However, they are mistaken in thinking that homosexuality is chosen; there is compelling evidence that sexual orientation is an innate rather than acquired characteristic. Therefore, this argument is absolutely false as it is based on an erred understanding of sexual orientation. 

LEGAL FRAMWORK

If the government legalises same sex marriages there will be three types of marriages that will be governed by the law, Heterosexual, Gay and Lesbian marriages. These three relationships are fundamentally different in nature, thus there is a need for a separate legal framework to regulate homosexual relationships.

The laws regulating heterosexual relationships are based on this presumption that the main objective of marriage is procreation and child rearing. Thus, laws are framed in such a way that they regulate opportunistic behaviour and accommodate conflict between private and social incentives.  These laws are also strongly based on the biology of procreation and gender roles performed by the partners in a marriage, as a conflict between the private and social incentives is strongly related to these two aspects. For example, a woman makes family specific investments, by bearing the child, that too at a young age. Whereas at the same time, the man makes investments on his personal capabilities (education, work, etc) to go and work in the labour market. This set up makes women more vulnerable to the risk of abandonment. Thus, alimony (damage for the breach of contract) and divorce laws not only aim to enhance stability and promote cooperation but also offer insurance for the weaker party against opportunism in making break-up costly. Such laws create incentives to procreate and to invest in their offspring so that they will be successful members of the next generation. An implication of this theory is that the optimal marriage rules have been remarkably constant across time and cultures because these issues remain relatively constant across heterosexual couples.[8]

However, when it comes to homosexual relations, both the partners perform the same gender roles, and a biological difference in terms of procreation is also not there. And it is generally observed that both the partners in a homosexual relationship are financially independent, so the same set of laws will not be efficient in regulating their opportunistic behaviour and put a check on incentives. Another argument made is that there is no division of labour (based on gender roles) in same sex marriages as both partners will have same gender roles. This view is completely redundant as sex no longer defines the role you will perform in the family (introduction of paternity leave is one such example), therefore there is no specific specialisation anymore. In addition to that, the specialisation can also occur, when both partners are completely identical but have different endowment factors.[9]

The fundamental difference between these three types of unions is the biological relationship between parents and children. In a heterosexual marriage, biology is perfectly aligned with the definition of parent. In any heterosexual marriages, the child is biologically linked to her parents, whereas this link is broken in same sex marriages (at least with one of their parents). This difference produces a different set of incentive problems between heterosexual and same-sex marriages.[10] It is very rare in heterosexual marriages (death of a spouse, divorce etc.), that this link is broken, whereas it ubiquitous in same sex marriages (artificial insemination, adoption etc.) It is not obvious that current structures—such as adoption and reproductive technology—that are adequate for heterosexual marriage will be sufficient for same-sex marriages.[11] Also, the laws regulating this area such as custodial rights, visitation rights, succession of property etc., should be such that both the partners are incentivised to invest in the childcare.

The effect on children living in homosexual households is still ambiguous. It is considered that a child needs both gender influences while growing up, which will be missing in such households. According to Gary Becker “the effects on children raised by gay couples will usually be quite negative, in part because fathers and mothers have distinct but important roles, in part because their family structures will differ so greatly from that of their classmates and other peers.” [12] Another contention is that homosexual relations are unstable (mostly gay couples), and due to which the non-biological (in case one is a biological parent and other is non-biological) parent does not have an incentive to invest in childcare. However, having marriage laws can solve this problem, as laws will make such relations stable and can also provide for incentives for partners to be altruistic and invest in childcare.

Also, in India, private affairs like Marriage personal laws which are strongly influenced by religious practices and customs, it will be difficult to regulate such marriages. However, this should not be the reason to deprive same sex relations of the status of marriages. In fact, the Netherlands—the first country to grant equal marriage rights to same-sex couples (2001)—is religiously diverse and so is Canada, which gave the rights in 2005.[13]

From the above discussion, it can be concluded that there is a need of laws to regulate same sex relations and these relations should be given the status of marriages. Now there are two alternatives government has. One, that the government makes changes in existing laws, to accommodate same sex marriages also. What will be the implications of such changes? It is believed that, to the extent, the existing laws are changed to accommodate same sex relations, heterosexuals will find them unsatisfactory and inefficient, due to the fundamental difference in the two types of relationships. Heterosexual couples will get a scope to exploit the loop holes, and partners will seek to better themselves on the cost of other family members. This will deteriorate the status of marriage as an institution and lesser people would want to get married, which will lead to further problems in society.[14]

The other alternative the government has is to have separate set of laws, which are in complete isolation from the already existing laws for heterosexual couples. As this is a completely new area of personal laws and anticipating all kinds contingencies is difficult, so making a one size fits all legislation won’t be a very a wise step. Also, society is still not ready to accept such relations as “marriages”.  This view might seem radical but is the best alternative for the government, it has also been suggested by many scholars, like Posner, Gary Becker and Douglas W. Allen. It is to have a contractual approach towards marriage, like to have private partnerships, rather than regulate their relation with inflexible judicial and legislative acts. Homosexual Couples can specify asset allocation, conditions for divorce, custodial rights, visiting rights, inheritance, alimony, and any other aspect of their relationship they want to regulate. Couples can add clauses related to their religious practices or customs they would want to observe after getting married. And for those who do not want to negotiate a contract, government can enact a default, contract which has very fundamental, basic and broad provisions.[15] This is a completely new way of looking at marriages and people might find it difficult to accept such an approach but that is due to lack of historical perspective and religious and ideological rigidity. But now we need to take a leap forward and accept the changes which are needed for the society to develop. Perhaps, it is the law of nature to change, to evolve and not just procreate and rear children. 

[1] Christina Muller, An Economic Analysis of Same Sex Marriage, Universität Hamburg Institut für Recht und Ökonomik, 2.

[2] Douglas W. Allen, An Economic Assessment of same sex marriages, Harvard Journal of Law and Public Policy, Vol. 29, No.3, 949.

[3] Supra note 1 at 3.

[4] Supra note 3 at 950.

[5] Id. at 957.

[6] Id. at 958.

[7] See The Law and Economics of Gay Marriages- Posner, The Becker Posner Blog, (Jul 17, 2005), http://www.becker-posner-blog.com/2005/07/the-law-and-economics-of-gay-marriage%C3%A4%C3%AEposner.html.

[8] Supra note 7.

[9] Supra note 1 at 9.

[10] Supra note 2 at 960.

[11] Id.

[12] See On Gay Marriage-Becker, The Becker-Posner Blog, (Jul 17, 2005), http://www.becker-posner-blog.com/2005/07/on-gay-marriage-becker.html.

[13]Same Sex Marriage, Encyclopaedia Britannica, (Sep. 27, 2018) https://www.britannica.com/topic/same-sex-marriage.

[14] Supra note 2 at 964.

[15] See The Law and Economics of Gay Marriages- Posner, The Becker Posner Blog, (Jul 17, 2005) http://www.becker-posner-blog.com/2005/07/the-law-and-economics-of-gay-marriage%C3%A4%C3%AEposner.html.