Legalizing Same-Sex Marriage in India: An Examination

Abstract: This comprehensive article explores the ongoing debate surrounding the legalization of same-sex marriage in India, focusing on the relevant case laws that have shaped the discourse. India has made significant strides and progress in recognizing LGBTQ+ rights in recent years, with the decriminalization of homosexuality in 2018 being a landmark moment. However, same-sex marriage remains a contentious issue and the country still grapples with the question of marriage equality, with diverse legal perspectives and social attitudes at play. This article delves into the key case laws that have influenced the conversation, highlighting the progress made and the challenges that persist. By examining such landmark judgments, this article aims to provide a clear consensus on the current state of the Supreme Court in reference to the past legal landscape and highlight challenges and opportunities on the path to marriage equality.

Introduction: The question of legalizing same-sex marriage has emerged as a pivotal and pressing issue in India's legal and societal landscape. In recent years, there has been a growing recognition of LGBTQ+ rights, marked by the decriminalization of homosexuality in 2018. The struggle for queer rights has gained momentum and led to significant legal reforms and landmark case judgments. However, the issue of same-sex marriage remains a contentious subject, with diverse legal perspectives and social attitudes at play. The concept of homosexuality is not new in this country. Contrary to popular belief, Indian culture has long recognised and paid homage to various homosexual and transgender deities and individuals that have emerged in various religious and historical texts. Hindu texts have taken various positions regarding homosexual characters and themes. The ancient Indian text Kama Sutra written by Vatsyanana dedicates a complete chapter on erotic homosexual behaviour. Historical literary evidence indicates that homosexuality has been prevalent across the Indian subcontinent throughout history. The Indian constitution has granted each individual the right to live with human dignity as per Section 21 of the constitution, which guarantees the ‘Right to a dignified life’ as one of our fundamental rights. Every Indian citizen of our country has been provided with this inalienable right along with the ‘Right against Discrimination’ and ‘Right to Equality’ which entitles all Indian persons to a life free from discrimination on the basis of caste, colour, creed, etc.

Homosexual and transgender individuals have long faced discrimination on the basis of their sexuality and physicality and have been forced to live outcasted from normal societies, not given medical, educational and professional opportunities making them susceptible to working in degrading jobs or facing fear of insults and even mob violence in many parts of the country. On the other hand, Many gay, lesbian and bisexual persons face the fear of being outcasted from social groups and often have to hide their sexual identities to be able to live a normal life free from judgement. In this article, We aim to explore the various landmark court cases and judgments that have empowered the LGBTQ+ community, especially in the context of the current Supreme Court case that is pending (Supriya Chakraborty and Abhay Dang v. Union of

India thr. Its. Secretary, Ministry of Law and Justice).

Section 377 of the British colonial penal code criminalized all sexual acts "against the order of nature". The law was used to prosecute people who engaged in homosexual activity and has been used to criminalize third-gender people. In 2018, British Prime Minister Theresa May acknowledged how the legacies of British colonial laws continue to persist today in the form of discrimination, violence, and death. Section 377 was a very impactful law in the Indian Penal Code used to justify violence, discrimination and imprisonment of homosexual individuals. It was first codified during colonial times in 1860, as “Carnal Intercourse against natural order”. Although Section 377 did not explicitly include the word ‘homosexual’, it has been used to persecute homosexual activity. The following Case laws have played a major role in solidifying

equal rights for homosexuals and transgenders in India:-

I. Naz Foundation v. Govt. of NCT of Delhi: This case was a critical case in

marking queer rights. The 2009 judgment marked the decriminalisation of homosexual sexual activity and recognised transgenders as a special category. Thus, July 2nd has been celebrated as the first ‘Indian coming out day’.

II. Navtej Singh Johar v. Union of India (2018): The Navtej Singh Johar case stands as a

landmark judgement in India's LGBTQ+ rights movement. In this historic ruling, the Supreme Court of India decriminalized homosexuality by striking down Section 377 of the Indian Penal Code. While the case did not directly address the issue of same-sex marriage, it laid the essential foundation by recognizing the rights of LGBTQ+ individuals and affirming a significant turning point for discussions on marriage equality before the law.

III. National Legal Services Authority (NALSA) v. Union of India (2014): The NALSA

case is another crucial milestone in the Indian journey towards recognising LGBTQ+ rights. In this case, the Supreme Court recognized the rights of transgender individuals and affirmed their right to self-identify their gender. While not directly related to same-sex marriage, this judgment highlighted the court's commitment to upholding the fundamental rights and dignity of all citizens, regardless of their sexual orientation or gender identity. The NALSA case serves as an important precursor to discussions surrounding marriage equality.

IV. Challenges, debates and diverse Perspectives on marriage equality: Despite these

significant advancements and progress made through cases like Navtej Singh Johar and NALSA, legalizing same-sex marriage in India still remains a complex issue. A wide range of challenges and perspectives continue to shape the debate. Advocates argue that same-sex marriage should be recognized as a fundamental right under the Indian Constitution, citing the principles of equality, non-discrimination and individual autonomy. Others believe that marriage is a cultural and religious institution and should remain limited to opposite-sex couples and contend that any change to this definition would infringe upon deeply held beliefs and traditions. Meanwhile, some contend that withholding marriage rights from LGBTQ+ individuals is a violation of their basic human rights. Additionally, some argue that the recognition of same-sex marriage could lead to unforeseen legal and social consequences, though these arguments have faced criticism for lacking empirical support.

V. International Perspectives: A valuable aspect of the debate surrounding same-sex

marriage in India is the examination of international experiences. Many countries around the world have already legalized same-sex marriage, providing insights into the potential benefits and challenges. Countries like the United States, Canada, and several European nations have successfully paved the way for legal recognition of same-sex marriages, demonstrating that it is possible to reconcile tradition with the principles of equality and human rights. These international examples offer important lessons for India as it considers the path forward.

VI. Legal and Legislative Developments: While India has not yet legalized same-sex

marriage, there have been positive legal and legislative developments at the state level. Some states, including Kerala and Telangana, have issued government orders recognizing same-sex partnerships and extending certain rights and benefits to LGBTQ+ couples. These initiatives represent important steps towards greater inclusivity and recognition, although they fall short of full marriage equality. As per The Supreme Court Judgment since of 2018, Section 377 of the Indian Penal Code is used for Convictions of non-consensual sexual activities among homosexuals

with a minimum of ten years imprisonment extended to life imprisonment. This has been outlawed presently.

Supriya Chakraborty and Abhay Dang v. Union of India:-

Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022 + connected matters

Supriyo Vs. Union of India is an ongoing collection of cases in the Supreme Court of India; set to consider the rights of homosexual and transgender Indians to marry and establish a family. The bench led by Chief Justice Chandrachud and consisting of 5 Judges heard the case starting April 18, 2023, with a judgment expected on Oct 20, 2023.

The Supreme Court of India is going to deliver its judgment soon on 20 petitions brought by 52 petitioners who seek legal recognition for queer marriages. These 20 petitions challenge the Special Marriage Act 1954, Hindu Marriage Act 1955, and Foreign Marriage Act 1969 for not recognizing non-heterosexual marriages. The focus is on the Special Marriage Act, not personal laws. The petitioners mostly consist of homosexual couples and individuals who base their demands on anti-discriminatory laws and the right to equality, dignity, privacy and personal liberty. The Union Government is willing to consider rights for same-sex couples without marriage recognition, like joint bank accounts, insurance nominations, and more. Debates on interpreting "husband" and "wife" as gender-neutral "spouse" in the Special Marriage Act were raised along with concerns about disrupting other legislations. The Child Rights Commission is divided on same-sex couple adoption, with the National Commission expressing concerns. Meanwhile, The Delhi Commission supports the right to adopt. A wide range of senior advocates argued for and against the petitions, with Solicitor General Tushar Mehta representing the Union Government. The respondents oppose the petition by stating that such rights will infringe on societal, cultural and current legislative policies and also hurt religious sentiments.

Conclusion: The journey towards legalizing same-sex marriage in India is marked by

significant progress and challenges. While landmark cases like Navtej Singh Johar and NALSA have laid a strong foundation by recognizing LGBTQ+ rights and upholding the principles of equality and dignity, the debate continues. The diverse perspectives and social attitudes in India influence the complexity of the issue. As the conversation evolves, it is essential to consider the lessons learned from international experiences and continue working towards a more inclusive and equitable society where all individuals, regardless of their sexual orientation, can enjoy the fundamental right to marry.

As the conversation evolves, it is essential to consider the lessons learned from international experiences and continue working towards a more inclusive and equitable society where all individuals, regardless of their sexual orientation, can enjoy the fundamental right to marry. Legalizing same-sex marriage in India represents a significant step towards achieving full equality for the LGBTQ+ community and recognizing their inherent human rights. It is a journey that requires both legal reforms and shifts in societal attitudes, but one that is critical for fostering a more fair and inclusive India.