‘Equality is the issue’

Interview with Anand Grover, senior advocate.

Published : Jul 10, 2013 12:30 IST

Anand Grover. He says the notion that decriminalising same-sex union is a Western import is wrong.

Anand Grover. He says the notion that decriminalising same-sex union is a Western import is wrong.

ANAND GROVER, a senior advocate and the director of Lawyers Collective, appeared on behalf of the Naz Foundation (India) Trust in the Supreme Court in the Section 377 case. In an interview to Frontline , he speaks about the larger implications of the U.S. Supreme Court judgment on the Defence of Marriage Act, the important lessons it holds for India, and the similarities in the constitutional principles to be interpreted by the Supreme Court of India in the 377 case.

The U.S. Supreme Court judgment on the Defence of Marriage Act [DOMA] has declared Section 3 of the Act unconstitutional on the grounds that it violates the constitutional guarantee of equality. Also, the Supreme Court ruled that the proponents of California’s ban on same-sex marriage did not have standing to appeal the district court’s order invalidating the ban. Do you see any similarities in the tone of the judgment with the Delhi High Court judgment on Section 377? Are the issues at stake similar?

The cases before the U.S. Supreme Court related to aspects of marriage equality for LGBT [lesbian, gay, bisexual, transgender] persons, whereas the issue before the Delhi High Court was the criminalisation of consensual sexual acts between adults in private. In that sense the issues before the two courts were different.

In the DOMA judgment, the U.S. Supreme Court found that the law, by not recognising marriages between same-sex couples that were recognised by their respective States, targeted LGBT persons as a class and this violated their right to equality guaranteed under the U.S. Constitution. In the Naz Foundation judgment in 2009, the Delhi High Court reached a similar conclusion with respect to Section 377. The issue that is common with the Proposition 8 case ( Holingsworth vs Perry ) was whether the Supreme Court can entertain an appeal regarding the constitutional validity of a statute when it is not filed by the state itself but by a third party. The State of California refused to defend the constitutionality of the law and the Supreme Court did not entertain the appeal by a third party. With respect to Section 377 in India, the Union of India did not appeal against the Delhi High Court’s Naz Foundation judgment. I believe that only the state can defend the constitutional validity of a statute. Since the Union of India has not appealed, third parties cannot defend the law.

There are important lessons for India in the U.S. judgments. Things have gone far ahead in the world with respect to the rights of the LGBT community, whereas in India we are still fighting for decriminalisation. The U.S. cases talk about benefits available for same-sex unions post decriminalisation.

Why should equal protection apply only in States that recognise gay marriage? For example, in the State of New York gay marriage is legal, whereas in Texas it is not.

Marriages in the U.S. are governed by the law of each individual State. What had come up in the DOMA case was a federal statute, which did not recognise same-sex marriages even if the State had recognised them. This was held to be impermissible. The Proposition 8 case related to a State law which sought to ban same-sex marriages. However, the latter case was dismissed at the threshold without going into the merits. If the Supreme Court had examined the case on merits, its decision may have had wider implications across the U.S. The other State statutes have not been challenged as yet. In case of the State statutes, the U.S. Supreme Court can look into them only when they come up for consideration in the court. The fight now is going to be at a State level.

The Delhi High Court judgment relied a lot on Western jurisprudence in interpreting Indian constitutional principles. Do you think the recent U.S. judgment could be factored into the Supreme Court decision even though it has come out after the hearing?

Though Western jurisprudence is not binding but only persuasive, all courts are looking at issues of autonomy, privacy and discrimination. No judgment of any court outside of India is binding on the Supreme Court of India. It is only bound by the decisions of a coordinate Bench or a larger Bench of the Supreme Court. It can borrow from anywhere it likes.

Some of the appellants challenging the Delhi High Court verdict on Section 377 have argued that transposing of Western jurisprudence in the Indian context is problematic.

We do that all the time. Fundamental rights jurisprudence is common throughout the world. A lot of it is borrowed from the U.S. Constitution. The directive principles of state policy are borrowed from the Irish Constitution. Articles 14, 15 and 16 are peculiarities introduced to the Indian Constitution. Our ideas of polity, government, democracy and freedom of expression are heavily borrowed from the West. Ideas originate in different parts of the world and change over a period of time. So the idea that the court relied too heavily on Western jurisprudence does not have any credibility. I am surprised that this issue is being raised in the context of the Section 377 case. Same-sex desire has been part of our culture since time immemorial. It was only after the British introduced Section 377 that we imbibed the culture of criminalisation. The argument that decriminalisation is a Western imposition has no credibility whatsoever.

The U.S. judgment on DOMA has brought to the fore the conflict between constitutional morality and public morality. The judgment has said that the congressional desire to hurt a politically unpopular group cannot justify disparate treatment of that group. How do you see this debate panning out in the Indian context?

This conflict is very relevant in legal terms as far as the issue of equality is concerned. The crux of the judgments in these cases by the U.S. Supreme Court and other courts too is that you cannot target one group or treat them disparately. In the Indian context, outside the court, the LGBT movement has gone far ahead. It is increasingly accepted as a paradigm that you cannot treat different groups differently. As I said, the Delhi High Court judgment went further and spoke about a more holistic notion of constitutional morality which encompasses equality and inclusiveness. This notion of constitutional morality goes well beyond mere equality of opportunity and embraces a more holistic vision of equality.

The U.S. judgment on Proposition 8 touches upon judicial review of legislation and the issue of who has the standing to defend such legislation in a court of law. During the Supreme Court hearing on Section 377, this has come up several times, with some of the appellants alleging that Parliament was the right forum for the amendment of laws.

Parliament is the right forum for making and amending laws but not for deciding the validity of laws on constitutional principles. That is the preserve of the superior courts and that is what the court was deciding. Parliament has to make laws in consonance with the constitutional principles and fundamental rights, but sometimes it does not, and that is where the courts come in.

In the LGBT movement in India, there are diverse opinions on marriage. One school of thought is against privileging marriage over other forms of relationship forged by gay men and lesbian women by giving it state recognition. What is your view on marriage as a goal to be aspired to by the LGBT movement?

There are different views of marriage even within the heterosexual world. The law allows a certain degree of protection to married parties. You can have a semblance of a marriage without legal sanction, but when the marriage is recognised under law, the spouses have an obligation to maintain each other as well as their children. You are also entitled to social security benefits. In Europe, you have the concept of civil unions, which is not equivalent to a marriage but a contract, where parties have obligations. So there’s an entire spectrum of unions—from living together, civil unions to marriage. Whether you get married or not is up to you, but the question here is whether society as a whole agrees that there should be a certain form of marriage and whether marriage should have certain obligations. This debate has been on for years. Even in the 19th century, this was heavily debated with alternative paradigms such as communal upbringing of children existing. At the beginning of the 20th century, there was a lot of literature on communal living. The debate on marriage is a much larger debate—do you need a pact for your life, are human beings monogamous? These are larger questions that will continue to be debated.

Some would say gay people are moving towards marriages though it’s a failed institution. There are more people getting divorced—some countries are reporting that up to 50 per cent of marriages are failed marriages. So it’s an open question.

In what ways do you think the LGBT movement in India could gather momentum from the U.S. Supreme Court judgment?

The U.S. judgment and other such judgments only enhance the LGBT movement across the world. It means there’s another pointer to give momentum to the movement. There’s some sort of judicial recognition to the rights of the LGBT community and a normative legal paradigm has been set. This implies that not only do you have to decriminalise but there also has to be substantive equality in all spheres, including marriage and the benefits consequent on marriage.

Are there any laws parallel to DOMA’s Section 3 in India?

The Defence of Marriage Act was a federal law which did not recognise same-sex marriages. There’s no legal recognition of same-sex marriage in India. So long as laws like Section 377, which have the effect of criminalising homosexual identity, exist, there is no question of a court holding that any institution of marriage between same-sex couples is valid.

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