The first three words of the Constitution of India, We, the people encompasses the vision of the society by the makers of the Constitution. The Constitution gives the sense of entitlement to every individual. The Preamble of the Constitution lays down social justice as its one of the most important features as well as goals. The Fundamental Rights, enshrined in the Constitution provide Right to Equality to every person within the territory of India. It acts as the savior of human dignity.

Article 15 of the Constitution prohibits the state to discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The legislature cannot override this principle while drafting laws. It has, time to time, formulated many laws which have strengthened the pillars of Article 15. Discrimination on the basis of gender, however, often finds a way, to practically disrupt the intent of Article 15. The laws made by the Government and the judgments by the Courts, sometimes, take us back to the ill-notions of patriarchy.

Patriarchy has been an ill part of our society from centuries. Unfortunately, it is prevalent on precisely every aspect of our day to day life, whether it be our personal or professional space. The notion of men more competent than women is entrenched in the minds of people. It is, however, desired for the judiciary, which is the custodian of our rights, including the right to equality, to preserve the honor of women against the ill notion of patriarchy.

The remark made by Justice Indu Malhotra, [the] times when wives were invisible to the law and subordinate to their husbands had long passed[1], opines the liberal view that our courts have adopted while dealing with laws related to women. Not even an aorta of doubt occurs in asserting that woman is not a chattel of man in this modern society. The same principle was applied to strike down Section 497 of IPC which criminalized adultery. Section 497 stated that it is punishable for a man to have sexual intercourse with a married woman without the consent of her husband. The terms without the consent of her husband infringed the individuality and dignity of a woman and made her a chattel of her husband.

The Supreme Court, however, has even turned down this liberal approach while dealing with certain cases. The recent remarks made by the Chief Justice of India in Mohit Subhash Chavan v State of Maharashtra, asking the accused whether he will marry the girl he raped, reaffirms the wicked idea to settle a rape charge by forcing the accused to marry the victim.

This statement carries with itself an idea, that marriage gives husbands the right to have sexual intercourse with their wives without consent. India is one of the 36 countries which do not have a legal recourse for marital rape. An exception in Section 375 of Indian Penal Code, which criminalizes the offence of rape, states that sexual intercourse by a man with his own wife, the wife not being under the age of fifteen, is not rape.

This exception is makes marital rape perfectly immune from the scrutiny of the criminal justice system. The idea of women, particularly wife, being the property of husband is reinstated in this exception. Recently, the CJI rhetorically asked in Vinay Pratap Singh v State of UP that whether sexual intercourse between husband and wife, however brutal, can be termed as rape?

The usage of words however brutal takes us back to the notion of wife being the property and instrument of husband. An analysis of this worrisome statement raises a question, does a husband have all the rights, however brutal against his wife?

The United Nations Committee on Elimination of Discrimination Against Women (CEDAW) recommended the Government of India to criminalize marital rape in 2013. The Justice JS Verma Committee, set up after the Nirbhaya Case in 2012, also recommended the same. On the other hand, the arguments put forwarded by the Government in RIT Foundation v Union of India makes it clear that criminalization of marital rape has a long way to go. The Government argued that criminalizing marital rape would destabilize the institution of marriage.

This argument apparently reveals the old concept of marriage which the government of the day still believes in. The Government went to the extent saying that the idea of marital rape cannot be suitably applied in the Indian context.

• The larger question thus becomes, what is the Indian context?
• Does it mean that the husband is the ruler and his wife is his slave?
• Or does it apply to the sheer infringement of dignity of a woman, particularly, married woman?

The old notions of gender, applied by the state, are also reflected in the status of LGBTQ gender in the country. The Supreme Court, in the celebrated judgment of Navtej Singh Johar case, decriminalized sexual intercourse between two individuals of same genders. But the Supreme Court was only faced with the question of Section 377 of IPC.

The question of marriage was not dealt by the court. It is certainly out of the ambit of the powers of the Judiciary to override the intention of the legislature. The Legislature has time to time expressed its reservations against same-sex marriage. The Government, recently, argued in the Delhi High Court that there exists a legitimate state interest in limiting the recognition of marriage to persons of opposite sex.[2]

The stand of the Government that recognizing same sex marriage is detrimental to the sanctity of marriage is inherently flawed. Marriage is a personal business and the state should have no authority to give unreasonable declarations with regard to who is competent to marriage. The Government also argued the fundamental right under Article 21 is subject to the procedure established by law and the same cannot be expanded to…include the fundamental right for same sex marriage to be recognized under the laws…which in fact mandate the contrary. [3]The Government then went on to say that the law permits only 'biological man' and 'biological woman' to marry.

The Government's stand snatches away the individual dignity and privacy of LGBTQ people. The argument also runs against the Supreme Court's judgment in Navtej Singh Johar, in which the Court said …Their [LGBTQ people] rights are not so-called but are real rights founded on sound constitutional doctrine. They inhere in the right to life. They dwell in privacy and dignity. They constitute the essence of liberty and freedom. Sexual orientation is an essential component of identity. Equal protection demands protection of the identity of every individual without discrimination.[4]

The Apex Court affirmed that there cannot be an exception based on gender stereotypes in the application of Fundamental Rights. The Supreme Court in various judgments, including the Hadiya [5]case, has said that right to marry a person of one's choice is a fundamental right. The Government's argument, therefore, runs contrary to the judgments of the Supreme Court. The Government's arguments are based on Special Marriages Act 1954, which is silent on the marriage of LGBTQ couples.

The act came into force in time when perhaps this demand was not very prevalent. But, the time has come for the Government to amend the Act and legalize same-sex marriages. Legalization of same-sex marriages will come with various questions, for instance, the succession rights, maintenance, etc. These questions should to be dealt by the Government keeping a liberal approach. Same-sex marriage runs against the personal laws governing marriage.

The un-codified personal laws are immune from Fundamental Rights under the Constitution, as said in the State of Bombay v Narasu Appa Mali. They do not come under the definition of 'law' under Article 13. However, it can be argued that same-sex marriage cannot be governed under the personal laws, as it is arguably not 'personal' to any religion, and therefore, out of ambit of the personal laws.

These two issues- Marital Rape and Same-Sex Marriage, highlight the need to make our laws gender neutral in a correct sense. The Government and the Courts should adopt a more liberal way, as they have undoubtedly done is many instances, in these two issues too. It is the need of the hour, to strengthen the foundation of our Constitution, which is based on human dignity of every individual.

End-Notes:

1. Jospeh Shrine v Union of India 2018 SCC OnLine SC 1676
2. https://indianexpress.com/article/india/same-sex-marriages-legal-recognition-centre-7204303/
3. ibid
4. Navtej Singh Johar W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016
5. Shafin Jahan v Asokan K.M. (2018) SCC OnLine SC 343