Same-Sex Marriage

By: Shruti Singh, Advocate

Introduction

Same-sex marriage has become a serious issue in India. According to societies, LGBTQ+ communities are destroying our culture. Our culture doesn’t accept the fact of Homosexuality. Because of this, the concept of Homosexuality is banned by law or traditional custom, and even established gender roles/dress were banned. People worldwide endure violence, inequality, and, at times, even torture or execution due to their love, appearance, or identity. Sexual orientation and gender identity are intrinsic aspects of individuals and should never be grounds for discrimination or mistreatment. Human Rights Watch strives to protect the rights of LGBTQ+ individuals and partners with activists advocating for various identities and causes. Our mission involves documenting and exposing global abuses linked to sexual orientation and gender identity, such as torture, killings, unjust arrests, unequal treatment, censorship, medical mistreatment, employment and housing discrimination, domestic violence, child abuse, and denial of family rights. We champion laws and policies to uphold everyone’s dignity, working toward a world where all enjoy their full rights.

Previous landmark rulings on LGBTQ+ rights

In India, recent years have witnessed transformative legal changes that have significantly impacted the LGBTQ+ community. Progressive Judgments and milestones have recognized the rights and dignity of LGBTQ+ individuals, marking a remarkable journey toward equality.

1.Naz Foundation vs Government of NCT of Delhi (2009)

A pivotal moment for India’s LGBTQ+ community came with the landmark Naz Foundation v. Government of NCT of Delhi case. The Delhi High Court’s historic ruling declared Section 377 of the Indian Penal Code, which criminalized consensual same-sex relationships, as unconstitutional. This decision shed light on individual freedom, privacy, and the right to love without discrimination, offering hope and progress.

2.National Legal Service Authority vs Union Of India (2014)

In 2014, the Supreme Court of India issued a groundbreaking ruling in the National Legal Service Authority vs Union of India case. The court officially acknowledged transgender individuals as a distinct third gender, endowing them with fundamental rights and legal safeguards. This verdict affirmed their dignity, identity, and entitlement to equality, non-discrimination, and access to social welfare programs.

3.Navtej Singh Johar vs Union of India (2018)

The landmark Navtej Singh Johar vs Union of India case ignited fresh hope and freedom for the LGBTQ+ community. The Supreme Court’s historic decision abolished the oppressive elements of section 377, decriminalizing consensual same-sex relationships. This ruling resonated with principles of equality, freedom, and the inherent right to love and live without persecution. It marked a monumental victory for LGBTQ+ inclusivity and the dismantling of long-standing prejudices.

4.Shafin Jahan vs Asokan K.M and others (2018)

In the Shafin Jahan v. Asokan K.M and another case, the Supreme Court acknowledged the fundamental right to marry, extending it to all, including same-sex couples. While not explicitly legalizing same-sex marriage, the court emphasized the importance of societal acceptance and called upon the legislature to address the issue. This progressive ruling laid the foundation for ongoing discussions and potential future recognition of same-sex relationships.

5.Transgender Persons (Protection of Rights) Act, 2019

To address the vulnerability and marginalization experienced by transgender individuals, the Transgender Persons (Protection of Rights) Act, 2019 was implemented. This law aimed to grant transgender people a range of rights and safeguards, including the right to self-identify their gender, protection from discrimination, access to healthcare and education, employment, and social welfare opportunities. The Act marked a substantial stride towards inclusivity and empowerment for the transgender community.

6.Deepika Singh vs Central Administrative Tribunal (2022)

In a recent verdict, the Supreme Court of India broadened the legal definition of “family” to encompass same-sex couples. In the case of Deepika Singh vs Central Administrative Tribunal, the court recognized the significance and rights of same-sex relationships, affirming the profound emotional and committed connections with LGBTQ+ couples. This Judgment reinforced the acknowledgement of same-sex relationships in society and underscored the necessity for legal protection and societal acceptance.

Recent Judgment on LGBTQ+ Rights by Supreme Court

1.Supreme Court judgment on Right of Queer Unions

In a recent ruling, the Supreme Court addressed the rights of Queer communities. The Court declined to provide legal recognition for queer marriages in India, indicating that this is a matter for the legislation to decide. Nevertheless, all judges on the bench concurred that the Union of India, in line with a prior statement, would establish a committee to assess the rights and entitlements of individuals in queer relationships, even without formally labelling them as “marriages”. The court also unanimously affirmed the right of queer couples to cohabit without fear of violence, coercion, or interference but refrained from issuing directives for their formal recognition as marriages.

2.Judgments of judges on “Queer Rights”

CJI DY Chandrachud– In the Judgment, the Chief Justice of India (CJI) affirmed the right of queer couples to seek recognition of their unions, underlining the constitutional guarantee of their freedom. The CJI acknowledged that the court couldn’t alter the Special Marriage Act’s provisions due to “institutional limitations”, which fall under the purview of the parliament and legislature. Notably, the CJI noted the Union Government’s commitment to establishing a committee to determine the rights of individuals in queer unions. Additionally, the CJI recognized the right of transgender individuals in heterosexual relationships to marry under existing laws and allowed unmarried couples, including queer ones, to jointly adopt a child, deeming restrictions in CARA Regulations 5(3) as unconstitutional under Article 15 of the Constitution.

SK Kaul– Justice SK Paul concurred with the Chief Justice’s verdict, emphasizing that queer unions should be acknowledged as partnerships based on love. He asserted that the Special Marriage Act infringed upon Article 14 by discriminating against these unions. However, much like the Chief Justice, Justice Kaul also acknowledged that there were constraints on the court in terms of incorporating queer unions into the Special Marriage Act, as this decision ultimately fell within the purview of the parliament.

Justice S Ravindra Bhat – Justice Bhat disagreed with the Chief Justice’s judgment, asserting that civil union rights for queer couples must come through legislation, not the court. He argued that the court’s role was to protect against violence and criminalization of queer individuals, not to create marriage rights. Justice Bhat acknowledged the need for policy considerations regarding queer couples but emphasized their rights to relationships. He also disagreed with CJI on adoption rights for queer couples, finding that Regulation 5(3) of the CARA regulation was constitutional.

Justice PS Narasimha – Justice Narasimha supported Justice Bhat’s view, affirming that the right to marry wasn’t absolute but statutory or customary. He believed recognizing civil unions mirroring marriage would be unconstitutional. On Queer Couples, adoption rights, he concurred with Justice Bhat, finding CARA Regulations constitutional. He emphasized the need for legislative review to address benefits exclusion.

On Oct 17, 2023, the Indian Supreme Court Constitution Bench unanimously ruled against altering the Special Marriage Act (SMA), 1954, to recognize non-heterosexual unions as marriages. This decision, expressed in four judgments by the Bench members, including CJI DY Chandrachud, denied legal recognition for queer marriages in India. The Court maintained that amending the SMA for this purpose should be left to the Parliament, not the Judiciary. The petitioners had sought a gender-neutral interpretation of the SMA to include queer marriages.

Conclusion

The debate over same-sex marriage in India continues to be a complex and evolving issue. While significant legal progress has been made in recognizing the rights and dignity of LGBTQ+ individuals, the question of legalizing same-sex marriage remains with the legislature. The recent Supreme Court ruling, while not granting formal recognition to queer marriages, underscores the importance of societal acceptance and the ongoing conversation surrounding this topic. The journey towards full LGBTQ inclusivity and rights continues.