Same-Sex Marriage and Constitutional Law Developments

Right of LGBTQ+ Community | Oct. 13, 2024

Same-Sex Marriage and Constitutional Law Developments

This Article has been written by Akshita Dadhich, a BBA-LLB student in my 3rd year at Jai Narain Vyas University, Jodhpur.

Same-Sex Marriage and Legal Developments in India

The discourse surrounding same-sex marriage in India is both complex and evolving, shaped by constitutional interpretations, judicial verdicts, and changing societal norms. As India grapples with these issues, it is essential to examine the legal framework that could either hinder or enable the legalization of same-sex unions. At its core, this involves understanding the rights enshrined in the Indian Constitution and how they are applied to LGBTQ+ individuals.

What is Same-Sex Marriage?

Same-sex marriage refers to the legal union of two individuals of the same gender, granting them the same legal rights, privileges, and responsibilities that are traditionally accorded to heterosexual couples. This includes the right to inherit property, make medical decisions for a partner, and adopt children, among other legal benefits. Legalizing same-sex marriage isn't just about formal recognition; it's about ensuring equality, dignity, and protection for same-gender couples under the law.

Constitutional Law Developments

India's legal landscape has witnessed significant transformations over the years, especially in regard to LGBTQ+ rights. Article 14 of the Indian Constitution guarantees the right to equality before the law, while Article 21 assures the right to life and personal liberty. These fundamental rights form the basis of many legal challenges to discriminatory laws, including those related to same-sex relationships.

The landmark judgment of Navtej Singh Johar v. Union of India in 2018 marked a turning point when the Supreme Court decriminalized consensual same-sex acts by reading down Section 377 of the Indian Penal Code. However, the decriminalization of homosexuality was only a step forward; the recognition of same-sex marriages remains an uncharted legal territory.

The Current Status of Same-Sex Marriage in India

As of now, Indian law does not permit same-sex marriages. The concept of marriage in most Indian statutes is rooted in the traditional definition of a union between a man and a woman. This includes personal laws such as the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954, which explicitly refer to marriages between opposite-sex couples.

While the decriminalization of homosexuality was a monumental victory for LGBTQ+ rights, it does not extend to granting same-sex couples the legal right to marry. Without this legal recognition, same-gender couples are often deprived of critical protections afforded to married couples, such as spousal rights to pensions, inheritance, and tax benefits.

What's Next?

The road to legalizing same-sex marriage in India is fraught with challenges, but there is hope on the horizon. LGBTQ+ advocates are tirelessly working towards full legal recognition of same-sex unions, emphasizing that marriage equality is not just about love but about human rights. In 2023, several petitions seeking the legalization of same-sex marriages were filed before the Supreme Court of India, reigniting public discourse on the matter.

Proponents argue that the recognition of same-sex marriages is the next logical step toward achieving equality for the LGBTQ+ community. They cite examples of countries like the United States, South Africa, and Taiwan, where same-sex marriage has already been legalized, urging India to follow suit in order to promote inclusivity and protect the rights of all citizens.

Challenges and Opportunities

Despite the growing momentum, there are considerable obstacles that same-sex marriage activists face in India. Social conservatism, deeply ingrained cultural beliefs, and religious opposition continue to pose significant barriers to acceptance. For many, marriage is viewed as a sacred institution defined by traditional gender roles, making the idea of same-sex unions difficult to reconcile with societal norms.

On the legal front, the lack of consensus within various religious and personal laws presents a complex challenge. In a country as diverse as India, where different religious communities follow their own personal laws, harmonizing these frameworks to recognize same-sex marriages is a daunting task.

However, the increasing visibility of LGBTQ+ individuals in Indian society, the rise of supportive allies, and judicial openness to expanding the scope of constitutional rights offer glimmers of hope. The Indian judiciary, which has a history of interpreting laws in favor of marginalized communities, could potentially play a pivotal role in shaping the future of same-sex marriage in the country.

The Path Forward: Hope for Change

While there is still a long way to go, the future looks promising for same-sex marriage in India. The fight for legal recognition is not just a battle for LGBTQ+ rights but a broader movement for equality, human dignity, and the right to love without fear of discrimination. As public awareness grows and more people join the movement, the goal of legalizing same-sex marriage becomes more attainable.

Ultimately, the quest for marriage equality in India is about more than legal provisions—it is about creating a society where every individual, regardless of their gender or sexual orientation, is afforded the same respect, protection, and opportunities as everyone else.

Background -
Denmark was the first country to legally recognize same-sex unions in 1989,Later, the Netherlands became the first-ever country to legalise same-sex marriages. Talking about India has a long history of discussing same-sex unions and homosexuality, dating back to ancient and medieval times.

Starting from 400 BC Arthashastra, Manusmriti point to homosexuality in ancient times Ramayana and Mahabharata 1999- The first-ever pride parade in India took place in Kolkata.

2005- Prince Manvendra Singh Gohil publicly came out as gay.
2008- Five Indian cities celebrated gay pride parades, including Delhi, Bangalore, Kolkata, Indore, and Pondicherry.

In 2009- The Delhi High Court found section 377 in direct violation of the fundamental rights of life, liberty, privacy, and equality.
On October 17, 2023, the Supreme Court of India ruled in Supriyo Chakraborty v Union of India that the Indian Constitution does not explicitly recognize the right to marry as a fundamental right for all people, regardless of sexual orientation; thus allowing same-sex couples to marry under it. The SMA, they argued violated Articles 14, 15, 19, 21 and 25 by not allowing marriage between same-sex, gender non-conforming, LBGTQIA+ couples, and sought the words “husband” and “wife” as well as any other gender-specific term to be substituted by the word “party” or “spouse”.

Article 21 of the constitution guarantees its citizens the right to marry the person of one's choice. In the 2018 landmark case Navtej Singh Johar v. Union of India, the Supreme Court of India unanimously decriminalized homosexuality by striking down Section 377 of the Indian Penal Code, 1860. add a definition ( of sec 377 IPC)

Objectives-
1) Legal Recognition of Same-Sex Marriages: The Indian legal system does not currently recognize same-sex marriages, defining marriage strictly as a union between a man and a woman. Although Section 377 of the Indian Penal Code, which criminalized homosexuality, was struck down by the Supreme Court in 2018, granting a major victory for LGBTQ+ rights, same-sex marriage remains illegal. Consequently, LGBTQ+ individuals in India do not have the same legal rights as heterosexual couples, including the right to marriage, adoption, and inheritance.

2) Legal Precedents for Stable Relationships: In a significant ruling in 2017, the Delhi High Court acknowledged the right of same-sex couples to engage in stable relationships. However, it stopped short of legalizing same-sex marriage. While the court's decision marked an important step forward, it also sparked widespread debate and further deliberations on the legal rights and recognition of same-sex couples in India.

3) Transgender Rights Protection: The Transgender Persons (Protection of Rights) Act, passed in 2019, aimed to protect the rights of transgender individuals, providing them with legal recognition and safeguarding their rights. Despite this, implementation issues persist,
and further advocacy is needed to ensure full protection and equality.

Advocacy and awareness-

Advocating for Equal Rights: To combat discrimination against homosexuality, it is crucial to advocate for equal rights, including the legalization of same-sex marriage, equal employment opportunities, and anti-discrimination laws. Significant progress was made in March 2023 when several petitions were filed in the High Courts of Delhi and Kerala, seeking recognition of the rights of same-sex couples under existing laws such as the Special Marriage Act, Hindu Marriage Act, Citizenship Act, and Foreign Marriage Act. Additionally, raising public awareness through campaigns and education can help shift societal attitudes toward greater acceptance and equality.

Support Systems and Safe Spaces: Establishing support systems and safe spaces for LGBTQIA+ individuals is vital for their well-being. Community centers, counseling services, and helplines can provide much-needed support and resources.

Fast forward to March 2023, and close to half a dozen petitions have made their way to the High Courts of Delhi and Kerala, seeking to recognise the rights of same-sex couples under various existing laws – the Special Marriage Act, Hindu Marriage Act, Citizenship Act, and the Foreign Marriage Act.

Policy and legal reforms –

Amending Marriage Laws: Legal reforms should include amendments to the Special Marriage Act, 1954, to allow same-sex couples to marry legally and enjoy the same rights and benefits as opposite-sex couples. Meanwhile, creating contractual agreements can help homosexual individuals enjoy rights similar to those of heterosexual couples.

Broadening Family Definitions: A 2022 Supreme Court ruling expanded the definition of families to include live-in couples, inclusive of LGBT individuals, thereby granting LGBT couples rights and benefits equal to those of married couples. This ruling highlights the need to update other laws and policies to reflect this inclusive definition.

Anti-Discrimination Laws: Strengthening anti-discrimination laws to explicitly include sexual orientation and gender identity can provide greater protection in areas such as employment, housing, and public services.

Legal Challenges-

Challenging Current Laws: The LGBTQIA+ community in India can challenge the constitutionality of laws preventing same-sex marriage in court. These legal challenges can set a precedent for the legalization of same-sex marriage.

Collaboration for Legalization: Legalizing same-sex marriage requires a concerted effort from various stakeholders, including the LGBTQIA+ community, government, civil society, and religious leaders. The Supreme Court has directed the government to form a committee to determine the rights and entitlements of queer couples. This committee's work will play a crucial role in determining how queer couples are treated in various aspects of life, potentially paving the way for more comprehensive legal recognition and protection of LGBTQIA+ rights in India.

Engaging with International Bodies: Collaborating with international human rights organizations can bring additional pressure on the Indian government to recognize and protect the rights of LGBTQIA+ individuals.

Recent Developments-

The Supreme Court's directive to form a committee on the rights and entitlements of queer couples is a significant recent development. This committee's work will play a crucial role in determining how queer couples are treated in various aspects of life, such as accessing social benefits and legal protections. Additionally, the increasing number of petitions and legal challenges in courts indicates a growing movement towards greater legal recognition and equality for same-sex couples. Public support for LGBTQIA+ rights is also on the rise, with more visibility and advocacy from celebrities, activists, and allies.

Conclusion-

The journey towards the recognition and legalization of same-sex marriages in India is an ongoing endeavours marked by significant milestones and enduring challenges. While the decriminalization of homosexuality in 2018 stands as a pivotal triumph for LGBTQIA+ rights, the formal acknowledgment of same-sex marriages continues to remain elusive. The Indian legal framework and societal attitudes are gradually evolving, yet substantial efforts are still requisite to attain complete parity.

Advocacy for equal rights, encompassing the legalization of same-sex marriage, assumes paramount importance. Amendments to extant laws, such as the Special Marriage Act, and the expansion of the definition of family to integrate LGBTQIA+ individuals, are indispensable strides towards realizing this objective. Legal contentions against prevailing discriminatory statutes and collaborative engagements amongst diverse stakeholders, including the LGBTQIA+ community, government entities, civil society, and religious authorities, are imperative to pave the way for comprehensive legal validation and safeguarding.

Recent advancements, notably the Supreme Court's mandate to institute a committee on the rights and entitlements of queer couples, exemplify progress and instil optimism in the future. With the burgeoning support for LGBTQIA+ rights within the public domain, the prospects for genuine parity are concurrently on the rise.