Legalization of Same-Sex Marriage in India: A Decision Still Awaited?

By Tamanna Yadav and Devansh Srivastav (NALSAR University of Law, Hyderabad, Batch of 2028)

Marriage has always been viewed as a union between man and woman but the fact that same-sex relationships date back to the past and exist in the present cannot be disregarded, particularly by the Government. Marriage equality is one of the fundamental rights that the LGBTQIA+ community has been deprived of since eternity. In 1861, the Britishers gave India its first codified legislation on homosexuality in the form of Supreme Court 377 of the Indian Penal Code. Since then, homosexuality has been criminalized. The fight for justice started in 2001 when the NAZ Foundation filed a petition against Supreme Court 377 in the High Court [Naz Foundation v. Government of NCT of Delhi and Ors, 2009 SCC OnLine Del 1762] which led to the decriminalization of homosexuality in 2009 but the Supreme Court overturned the high court’s ruling in 2013 [Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1]. Moreover, a private member’s bill was presented by Shashi Tharoor in 2015, but Lok Sabha rejected it as well. Finally, the Supreme Court scrapped Section 377 in 2018 which led to the legalization of homosexual relationships. But, in the present time, the concern is about the legalization of same-sex marriages when India is not among the 34 countries where it is legalized. In response to the petitions on same-sex marriage, the Bar Council of India passed a resolution on April 23rd, 2023 opposing legal recognition of same-sex marriage which not just dismayed the bearers but everyone. The undeniable fact is that the Supreme Court has the discretion to decide whether the subject should be decided by the court or by the wisdom of the Parliament which makes us question if the resolution passed is even appropriate or not.

Why there is the need to Legalize?

The fundamental unit of Indian society is family but the idea of two persons of the same sex constituting a family is thought of as repulsive by the society. Does it mean that we should decline the rights of such persons to form a family? No.

The LGBTQIA+ community has been fighting for their rights for a long time and there is a dire need to bring equality for them. Being a minority does not mean that their rights can be neglected in favor of the majority. It cannot be disputed that same-sex unions are regarded as unethical but the Parliament should refrain from pushing off the issue any further. Here are some reasons why same-sex marriage has to be legalized:

• The right to marry is a fundamental right under Article-21 which cannot be declined by any citizen of India. According to the Puttaswamy case [Justice K.S. Puttaswamy v. Union of India, AIR 2017 SC 494], Article 21 also guarantees the right to privacy. Article 14 provides the right to equality which means that there can be no discrimination against the LGBTQIA+ community. Hence, there is a need that the LGBTQIA+ community’s right to marry to be recognized in the eyes of the law by the legalization of same-sex marriages.
• If the change is made and the laws are altered in favor of the LGBTQIA+ community, it will also make a change in people’s thought processes which will lead to more acceptance.
• People tend to believe that same-sex relationships are a contemporary phenomenon but unexpectedly it is not. Same-sex relationships are not alien to Indian culture and it can be said that India had a queer history. For instance, the Khajuraho temple of Madhya Pradesh has architecture depicting same-sex relationships, Hindu text Kamasutra discusses it and in the 1940s, illustrious Urdu writer Ismat Chughtai made bold to write a short story, Lihaaf, (The Quilt) which turned all preconceived writers on their heads. Also, in medieval India too we have had Amir Khusrau whose love for Nizamuddin Auliya is well documented.
• It would be problematic if the Parliament does not act and the realization of the right to equality is postponed. Undoubtedly, there will be repercussions. There are 34 countries where same-sex marriage is legalized and the only Asian country where it is legalized is Taiwan. The numbers will increase with time and if India lags, the LGBTQIA+ community will choose to move out of India to a place where they can live with freedom. It also means that India will lose talented people who could have served as an asset. In the end, India will face a brain- drain.

Position of the State

The Internet was boiling when the Government of India decided to oppose the legalization of same-sex marriage. Solicitor General Tushar Mehta presented the arguments and stand of the State. Here we are trying to understand the government’s point of view and why they need a thorough discussion before the legalization of same-sex marriage.

1. What is marriage?

Various religions, customs, and traditions in India consider marriage only between men and women. If a new definition of marriage needs to be developed, parliamentarians who represent the people should do it rather than judges. “Marriage, even in the Special Marriage Act of 1954, originates from personal law. The said secular enactments were enacted not to create a new social legal institution but rather as a means to overcome some limitations of personal laws,” Mehta argued.

2: What about the 2017 (Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors.) and 2018 (Navtej Singh Johar v. Union of India) judgments?

As determined by the Supreme Court, “sexual orientation” is a crucial aspect of identity and is now a fundamental right. The Centre maintains that while there is no disagreement regarding the ^[1]right to privacy, it cannot be compared to marriage. “When consulting adults want social acceptance of the relationship by way of marriage, they are conferred with public status by the state.”

3: Why does the State care about who you marry or about your personal relationship?

Rights are not absolute, and so is the right to marry someone. It is always bound by a legal framework established by appropriate legislation. Mr. Mehta went on by giving several examples where the state has regulated marriage. “Age, consent, bigamy, prescription of a prohibited degree of marriage (lineal ascendant), divorce”. During an oral observation, CJI DY Chandrachud offered the example of a parent-child connection that is governed by law. The parents can’t say they have absolute control over the child.

4: Parliament or Supreme Court?

The Centre has emphasized numerous times that only parliament can decide whether or not same-sex marriage is legal. Solicitor General Mehta cited the famous 2022 Dobbs v. Jackson case (US Supreme Court). The Supreme Court of the USA ruled that abortion cannot be protected as a fundamental right since it neither finds direct reference in the Constitution nor is it firmly founded in history or tradition. The majority of the State’s defense rests on the premise that “people have a democratic right to self-govern, and a court cannot compel them to do so”. The court will be stepping into uncharted territory if it legislates same-sex marriage, according to Mr. Mehta, and that could have unwitting repercussions.

5: Interpreting the ‘Special Marriage Act and its effect on “Personal Laws”

The State contends that to comprehend the Special Marriage Act properly, the entire legal system should be reviewed as opposed to focusing on a few terms, like “husband” or “wife,” and simply substituting “person” for them. Situations where the law stipulates exceptional, specialized rights to the wife– getting domicile of the husband, having more options for divorce, etc. Who will be the wife is a question for discussion. Petitioners and activists argue it can be given to both. The issue at hand is whether the court can provide one party’s rights in a gay marriage but not in a heterosexual marriage. Another point of contention is Section 19 of the Special Marriage Act, under which parties lose their right to family property. What would transpire in a same-sex marriage is a concern.

Analysis

The LGBTQIA+ community has hassled a lot for a long time to gain equality in society. It has not been simple, from battling for rights in court to working to alter people’s mindsets. After homosexuality was legalized, it was time for a new path. The focus was shifted to legalizing same-sex marriage. It is undeniable that there is a requirement to legalize same-sex marriage to be more liberalized and democratic. Also, the majority cannot decide for the deprived community when they are not affected by the deprivation of the rights of the LGBTQIA+ community.

After The Bar Council of India passed a resolution opposing same-sex marriage, the concern is whether the Parliament or the Supreme Court has the right to decide the fate of the LGBTQIA+ community. In a democratic country, the Parliament should have that right. There are numerous ways by which Parliament can bring justice to the deprived community which includes interpreting the marriage acts or bringing new laws. Justice is what is required in the end.

Conclusion

Should laws be a reflection of societal morality? Or should they push the envelope by making certain unions possible irrespective of social approval? This is one big question the Parliament has debated upon but the judicial resolution which was passed was not well received by everyone.

The demand of the LGBTQIA+ community is not a voicing of “urban elitist views” and allowing citizens to marry anyone of their choice would be unlikely to lead to a collapse of society and civilization. Also, the fact that the existing concept of marriage as a heterogenous institution is enjoyed by law and religion cannot delay the ruling anymore. The solution is awaited by the marginalized. There can be many things that the parliament can bring up for justice. A separate civil union can be created for the LGBTQIA+ community by which they can avail legal benefits such as tax laws, inheritance right, etc. and as it will be different from traditional marriages which will not be validated by any religion, they would not encounter as many problems due to social conventions. Parliament can recognize same-sex- marriages under existing laws such as- Hindu marriage law, Special marriage act, etc. Last but not least, an anti- Discrimination program can be launched to change society’s opinion so that the issue is handled at the root level.

It is not uncertain that some citizens may not be prepared for marriage equality but the expansion of legal rights to the LGBTQIA+ community is not even directly relevant to those who do not identify as queer. Therefore, the law should hold out more potential than the public imagination allows for and should be aimed at improving the lives of the marginalized.

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