This Article is written by Maanya Singh, a Fourth-year law student of Jaipur National University

Abstract

The issue of same-sex marriage in India is not a simple affair as it is rich in controversies having a blend of historical and legal, as well as social and political factors. In the past British colonial power introduced Section 377 of the Indian Penal Code (IPC) that prohibited ‘carnal intercourse against the order of nature’ which included homosexuality. This created a legal structure that supported the social discrimination against the minority and hindered the promotion of LGBTQ+ relationships. The judgment in Naz Foundation v. Government of NCT of Delhi in 2009 seemed to be progressive and liberal by de-criminalizing consensual gay sex, however briefly, it was repealed by a Supreme Court in 2013 in its judgment in Suresh Kumar Koushal v. Naz Foundation. The ultimate decision of the Supreme Court in Navtej Singh Johar v. Union of India (2018) recognizes same-sex relations supports the constitutionality of the group’s rights and is a breakthrough in the rights movement. However, this judgment did not speak anything about the legalization of same-sex marriage, thereby creating a relative lacuna for same-sex couples in terms of legal protection and rights.
From a social and cultural perspective, India still has a long way to go as acceptance of same-sex marriage still faces a major challenge. Heterosexual marriage is the traditional framework of the family and religious beliefs that prevent the majority of people from accepting and eradicating prejudice. This is evident when current laws like the Special Marriage Act, of 1954 do not have provisions for recognizing same-sex marriages thus eradicating equality by not recognizing same-sex marriages and the rights that come with it. However, there is still a gradual general and regional shift toward same-sex marriages as evidenced by the recent legalization of same-sex marriage in Taiwan and yet India continues to be apprehensive and polarized over the issue of same-sex marriage. This paper discusses the current issues regarding same-sex marriage in India and the importance of further litigation and debate for the rights of homosexual people.

Key Words

Same-sex marriage, Legalization, Equality, Advocacy, Discrimination, Cultural Attitudes.

Introduction

The other type of marriage is gay marriage which refers to a marriage status of two individuals of the same gender. This means it empowers the same as heterosexual marriages in the aspects of power, property, sex, status, and capital including those concerning children/ heirs, taxes, and health care access facilities. Another impressive step towards equality and non-discrimination is same-sex marriage which allows same-sex partners similar rights and opportunities as the heterosexual ones stipulated through legal marriage. There are world countries that accept same-sex marriage while others do not accept it, this is because of the culture and laws in place today. The very theme of same-sex marriages in India is in the process of discursive transition, which, starting from the margin today, is becoming one of the central themes of law, society, and politics tomorrow. This is also because of changes in perception on matters concerning gay rights promotion alongside changes in the human rights law in the country. The main purpose of this article is to investigate the legal status of Same-Sex Marriage in India, key precedents that are related to this issue, and the debate that surrounds the given topic at the moment.

A brief account of history and the legal system

Colonial Legacy
This paper proceeds to dissect India’s legal perception of the same-sex relationship by tracing its genesis to colonialism. As established by the Indian Penal Code (IPC) of 1860 during the British reign, homosexuality was outlawed under Section 377 of the code by criminalizing “carnal intercourse against the order of nature”[1]. This provision was severally understood to outlaw sodomy and thus played a part in the social outcasting of homosexuality in India.
Earlier this year the apex court of India set a significant precedent in Navtej Singh Johar v. Union of India (2018). Adultery was criminalized by the Supreme Court of India by declaring the unconstitutional sections of section 377. It was considered a great triumph for the active participants of gay and lesbian rights movements and a momentous turning point in the legal sphere[2].

Same-Sex Marriage: About the Legal and Social Aspects

Same-sex marriage and Constitutional Rights
Same-sex marriage in India means a lot of constitutional concerns are at stake here. The basic structures of the Indian Constitution are the Fundamental Rights which include the rights in Article 14 which is the Right to Equality, Article 19 which is the Right to freedom of speech and expression, and the Right to Life and Personal Liberty in Article 21. Merrill and Wolkomar point to the fact that opponents of same-sex marriage claim that these are not rightful fundamental rights of gay and lesbian people as to why denying marriage rights to same-sex couples is wrong[3].

Judicial Interpretations and Cases

1. Navtej Singh Johar v. Union of India[4]
The Supreme Court has given a landmark judgment regarding the rights of LGBTQ+ people about the question of decriminalization of sodomy especially for homosexual conduct. However, the court doesn't make any decision regarding same-sex marriages. The Court recognized the importance of change in law with time as issues surrounding same-sex relations were arising.

2. K.S. Puttaswamy v. Union of India[5]

This case revolves around the right to privacy as a fundamental right that is guaranteed under Article 21 of the Constitution. Initially, the case revolves in the context of biometric data but later on its principles have been used in the argument for same-sex marriage as privacy rights are seen as the right to personal relationships.

3. Shafin Jahan v. Asokan K.M.[6]

Supreme Court recognized that the right should be given to adults to marry his/her choice partner, irrespective of caste or religion. Although this case did not directly address same-sex marriage, it established important precedents regarding individual autonomy and personal choice, which are relevant to the discourse on same-sex marriage.

4. Naz Foundation v. Government of NCT of Delhi[7]

In this landmark case, the Delhi High Court decriminalized consensual homosexual acts between adults by striking down parts of Section 377 of IPC. The court held that these provisions were unconstitutional as they violated the fundamental rights of privacy, dignity, and equality. The ruling was a significant step forward for LGBTQ+ people’s rights in India though it did not address same-sex marriage directly.

Legislative and Policy Developments

a. Proposed Legislation
Still, there is a lack of legislative initiatives to address the issue of same-sex marriage from the side of the judiciary. The desire for legislative change that will spell out and endorse same-sex marriages has been on an upward rise.

b. The Marriage Equality Bill[8]: There are some bills proposed by the advocates and some of the lawmakers to make same-sex marriage legal. These bills usually experience high levels of political and social opposition but constitute commendable attempts to internalize the rights of same-sex marriage.

c. Government and Political Stance
The understanding of same-sex marriage especially as a human right by the Indian government has been rather reactive[9]. Though this has been done under the impression of understanding the necessity for more reforms there has not been any legal move towards the legalization of same-sex marriage. Such an approach is rather cautious, which can be explained by the overall views of society and politics.

Comparative Perspectives

a. International Trends
In the world, there have been changes in the acknowledgment of same-sex marriages. Some developed nations like the United States, Canada, and most of the European nations[10] have legalized same-sex marriages hence setting the pace in the norms that govern international human rights. Such trends comprise key lessons and possible paradigms for India.

b. Regional Developments
Taking Asia as a region, many countries have progressed at least to some degree in the matters of LGBTQ+ rights; however, the topic of same-sex marriage continues to be rather sensitive. The legislation of same-sex marriage in Taiwan in the year 2019 can be considered a major milestone in the region indicating that similar changes can happen in another Asian countries including India.

Social and Cultural Dimensions

a. Public Opinion
As for the current subject of same-sex marriage, Indian public opinion is still mixed. There is increasing recognition of the rights of sexual minorities, however, the traditional and in particular the religious culture does not allow same-sex marriage.[11]. Social views play the biggest role in influencing the legal policies toward SSM as well as their interpretation by the courts.

b. Activism and Advocacy
LGBTQ+ activists and organizations are very crucial in campaigning for same-sex marriage and other legal rights of LGBTQ+ persons[12]. Some of their measures are to bring a legal case, to provide information to the public, and to exert pressure for legislation. Their work is quite useful in furthering the issue of the calendar of same-sex marriage.

Future Directions

a. Potential for Legal Reform
The legal changes concerning same-sex marriage in India are on hand dependent on the activism of the judiciary but on the other hand, depend on the legislation and also the social culture of society.[13]. It is shown that the judiciary has created a basis for continuing the reforms however, a complex change of the legislation will be possible only with political and social backing.

b. Role of Civil Society
Civil society must continue to be at the forefront in demanding policies endorsing same-sex marriage as well as the rights of LGBTQ+ individuals. It will take more commitment and hard work from activists, scholars, and legal professionals to enhance the legislation and social reform to protect same-sex couples.

Social Problems in Accepting Same-sex Marriage in India Today
Although, there is robust legal reform in India, including decriminalization of same-sex relations through the Navtej Singh Johar case in 2018 still acceptance of same-sex marriage is a complicated and sensitive social issue in India. Several factors contribute to the ongoing challenges: Several factors contribute to the ongoing challenges:

1. Cultural and Traditional Norms: Religious and cultural beliefs have a huge influence when it comes to configuring Indian people’s perception of same-sex marriage. They also put a strong emphasis on the traditional nuclear family model and their purpose of marriage is mainly to have children and continue the family tree. Such unions are even resistant and counter-productively refuse to accept because they do not fit such conventional family and partnership structures.

2. Religious Beliefs: Religion plays a significant role in the perception of the people of India, the majority of which are Hindu, Muslim, Christian, and other religions, which all share a conventional stand on homosexuality. This is particularly so since many religions hold heterosexually endorsed marriage as sacred and same-sex marriage as taboo. This religious resistance has made it difficult for same-sex marriage to be acceptable and or legalized.

3. Social Stigma and Discrimination: LGBTQ+ people are discriminated against even after winning legal cases in the courtroom. Most people have negative attitudes towards homosexuality and have a belief that homosexuality is equivalent to moral or social perverted. This social prejudice also applies to same-sex marriages as they are rejected or looked down on by society or viewed with hatred. Negative attitudes towards this group of people can discourage their supporters from coming out in the open to advocate for same-sex marriage.

4. Lack of Legal Framework: Although a progressive move, there is still no social acceptance of homosexuals and legal permissions for same-sex marriage in India. The lack of legislation on issues of same-sex marriage results in legal gray areas and does not allow for the legal recognition of same-sex unions. This gap maintains inequity and denies legal acknowledgment and freedom of rights to same-sex couples as compared to heterosexually bonded couples.

5. Political Hesitancy: Out of fear of losing the traditional supporters’ trust, Indian politicians and political parties do not take clear stands on socially sensitive issues, such as same-sex marriage. This political prudence is a factor we see as a cause for legislative inertia and the absence of measures regarding same-sex marriage acknowledgment.

CURRENT LEGAL STATUS OF SAME-SEX MARRIAGE

This however is still an issue in India since same-sex marriages are not legally acknowledged in the country. The legislation of same-sex marriage remains a questionable and dynamic issue in the particular country. While there have been improvements in the liberties of sexual minorities, for instance, the decriminalization of consensual same-sex relations in 2018, marriage continues to be legally prohibited for Lesbian, Gay, Bisexual, Transgender, and Queer individuals.

On 6 September 2018, the Supreme Court of India legalized homosexuality, thus repealing section 377 of the Indian Penal Code which made having consensual gay sex a criminal offence. The legislation of same-sex marriage was lauded as a combo for the gay, lesbian, bisexual, transsexual, queer, and intersexual rights activists while being endorsed by the supporters. Nonetheless, the ruling excluded the benefits of marriage freeing thus leaving same-sex couples with no legal cover or protection.

Activism to end the ban on same-sex unions has received many setbacks. Applications have been made in the Indian Courts to grant the right to marry in same-sex relations stating that their rights also are violated as per Indian constitution and constitutional law prohibited discrimination of any kind. However, the legislation of same-sex marriages has faced some legal problems and as of now, no law has been made to approve same-sex marriages.

Indian government along with several different political and religious organizations has been reactionary to the concept of same-sex marriage mainly due to cultural and religious issues. Current attitudes regarding the subject can be mitigated as progressive as well as conservative with the discussions being rather active.

While there are certain legal events, such as the Supreme Court discussions regarding matters concerning sexual minorities’ rights, it seems that there are no tangible actions that would be focused on the legalization of same-sex marriage. New supports for gay and lesbian rights have forced the matter into the legal arena where civil liberties organizations want the government to extend protection to all people regardless of their sexuality. The perspectives of same-sex marriage in India will rely on the changing legal complexities and changing the perception of society.

PUBLIC ATTITUDE TOWARDS SAME-SEX MARRIAGE

Over the recent years, there has been a slow but sure acceptance of the idea, but there are still many people who do not support it.

Traditionally, the Indian society and the Indian government have been rather liberal concerning homosexuality and other matters concerning the members of the LGBTQ+ community. While, in the past, there was not much TV coverage or advocacy for members of the LGBTQ+ community, the so-called ‘modern’ period has witnessed more complex talks on the matter. The Indian coalition revealed in the current study in 2021 as per the Pew Research Centre came from the fact that a large number of Indians are against same-sex marriage due to traditional thinking especially in the rural areas and among the advanced population. This opposition mainly comes from the cultural and religious presumptions that hold homosexuality contrary to the cultural standards (Pew Research Center, ‘Social Attitudes in India’ (2021)).

Still, people living in cities and youth are more liberal. Some of the prominent or new human rights organizations that support same-sex marriage include the Azad Foundation and other several gay organizations here are some of the findings that show that people support marriages more than in the past. The findings also show that the support for same-sex marriage is with support from the new generation of educated urban people. For example, the survey conducted for the Azad Foundation in 2023 showed that 40% of young urban Indians supported same-sex marriage which indicates a change in attitude towards supporting LGBTQ rights (Azad Foundation ‘Changing Attitudes Towards LGBTQ+ Rights in Urban India’ (2023)).

There has also been representation in media which contributed to directing the perception of the public in some way. Engagement of gay issues in films, television, and social networks helps to raise public awareness and increase people’s tolerance towards gays and Lesbians although in more traditional societies this activity still results in negative reactions from the side of conservatives.

Conclusion
It brings out the evolution process of legal rights of homosexual couples, and how India responded to the same, which is a part of the world, struggling for gay and lesbian rights. Although positive changes have emerged over the past decade such as the decriminalization of homosexuality, recognition of same-sex marriage is a journey that champions legal, socio-political rights. Finally, some glimpses of hope, through the continuous pressure from campaigners and changing the social culture on one hand and favourable judicial reforms on the other. Even as India deals with these issues, the fight for marriage equality is one of the essential struggles under the liberal rights struggle in India.

References:

[1] The Indian Penal Code Act of 1860 Section: 377 (India).

[2] Navtej Singh Johar v Union of India

[3] The Indian Constitution, 1950, Parts III, IV and V containing articles 14, 19 and 21 on Fundamental Rights as well as other rights granted by laws under the Constitution.

[4] Navtej Singh Johar v Union of India (2018) 10 SCC 1.

[5] K.S. Puttaswamy v Union of India (2017) 10 SCC 1.

[6] Shafin Jahan v Asokan K.M. (2018) 16 SCC 368.

[7] Naz Foundation v Government of NCT of Delhi (2009) 160 DLT 277.

[8] Ranjana Kumari, ‘Marriage Equality Bill: A Legislative Perspective’ (2022) 13 Journal of Human Rights 45.

[9] Manisha Priyam, ‘Political Responses to LGBTQ+ Rights in India’ (2021) 7 Indian Journal of Public Policy 89.

[10] Isha Sharma, ‘Global Trends in Same-Sex Marriage: Lessons for India,’ Comparative Law Review Vol. 16, No. 2, p. 112.

[11] Arvind Narrain, Public Opinion and Same-Sex Marriage in India in Journal of Social Change Vol. 29 No. 1, pp. 55.

[12] Kiran Bhatia, ‘The Role of Activism in Advancing LGBTQ+ Rights in India’ (2021) 14 Indian Journal of Human Rights 92.

[13] Neeta Sharma, ‘The Future of Same-Sex Marriage Legislation in India’ (2023) 18 Indian Law Review 110.