INTRODUCTION
In Navtej Singh Johar v. Union of India1[1]The Supreme Court decriminalised homosexuality in 2018, marking a turning point in the country’s LGBTQ+ rights movement1. Parts of Section 377 of the Indian Penal Code were declared invalid by the ruling, which also said that consenting to same-sex relationships between adults was no longer illegal. This was a huge win for human rights, but it also created a huge legal void for LGBTQ+ people’s civil rights, including the ability to marry. Comparative jurisprudence, sociological hurdles, the existing legal situation, and the possible route towards legalising same-sex marriage in India are all examined in this blog.
THE CURRENT LEGAL LANDSCAPE
Even if consensual same-sex actions are no longer illegal under Section 377, same-sex partnerships are still not recognised by Indian law in terms of civil rights. Same-sex couples are still denied rights, including marriage, adoption, inheritance, tax breaks, and spousal advantages. India’s legal system remains mute, in contrast to many other nations where the civil recognition of same-sex partnerships swiftly followed decriminalisation.
In the Navtej Johar case, the Supreme Court established the groundwork for LGBTQ+ people to have equal autonomy, privacy, and dignity. It purposefully chose not to broaden its mandate to include the acceptance of marriage, nevertheless. The ruling was limited to criminal law, but it placed more emphasis on constitutional morality than on social morality.[2] Since then, several applications have been filed to have same-sex weddings recognised legally under various legislation, such as the Foreign Marriage Act of 1969, the Hindu Marriage Act of 1955, and the Special Marriage Act of 1954. The Supreme Court of India most recently refused to legalise same-sex marriage in Supriyo v. Union of India (2023), but it did order the government to establish a high-level committee to look at the matter of civil unions.[3]
CONSTITUTIONAL PRINCIPLES AT STAKE
Freedom of expression (Article 19), the right to equality (Article 14), the right to life and personal liberty (Article 21), and the prohibition of discrimination (Article 15) are all guaranteed under the Indian Constitution. These rights are violated when marriage rights are denied because of sexual orientation. The right to autonomy and dignity are fundamental to the right to life, as the Supreme Court noted in Justice K S Puttaswamy (Retd) v. Union of India.[4] It is blatantly against these ideals to deny same-sex couples the opportunity to be married.
Furthermore, the state must work to ensure a social order in which social, economic, and political justice permeates all institutions of national life by the fundamental principles entrenched in the Constitution, particularly Article 38, which supports social justice. Consequently, it is not only desirable but also essential that personal laws be interpreted in a progressive manner that keeps up with changing constitutional principles.
SOCIETAL RESISTANCE AND CULTURAL NARRATIVES
In India, the opposition to same-sex marriage frequently stems from religious and cultural themes. Marriage, according to critics, is a sacrament with roots in conventional gender norms. Even if this line of thinking is culturally relevant, it does not satisfy the constitutional test. In Navtej Johar, the Court emphasised that the law must be guided by constitutional morality rather than by popular opinion.[5]
However, societal resistance cannot be completely ignored. Conservative views continue to dominate public opinion, particularly in rural and semi-urban regions. As a result, every legal or legislative action that recognises same-sex marriage has to be supported by ongoing public awareness and education initiatives.
COMPARATIVE JURISPRUDENCE
Due to laws or court rulings, same-sex marriage is now allowed in more than 35 nations worldwide. A striking analogy is provided by South Africa, where the Constitutional Court ruled in Minister of Home Affairs v. Fourie that it was unconstitutional to forbid same-sex couples from getting married.[6] The Civil Union Act of 2006 was passed after the Court granted Parliament a year to make amends.
The Supreme Court of the United States ruled in the historic case of Obergefell v. Hodges that same-sex couples had a fundamental right to marry under the Equal Protection and Due Process Clauses of the Fourteenth Amendment.[7] Taiwan became the first nation in Asia to legalise same-sex marriage in 2019 as a result of legislative and judicial action.
Courts have the power to significantly impact minority rights, as these instances show. Additionally, by encouraging inclusion, they demonstrate that legalising same-sex marriage does not inherently undermine established marital structures but rather strengthens them.
LEGAL PATHWAYS FORWARD
There are several ways to actualise same-sex marriage rights within the Indian legal system. Judicial interpretation of current legislation, such as the Special Marriage Act, to accommodate non-heterosexual couples is one approach. As seen in Joseph Shine v. Union of India, when the adultery law was overturned for breaching gender equality, courts have already read down or reinterpreted legislation to conform to constitutional norms.[8]
Legislative reform is a second, more viable approach. A gender-neutral marriage legislation may be passed by Parliament, or the current laws might be changed to permit same-sex partnerships. Despite potential political obstacles, such legislation would have democratic legitimacy and wider acceptance.
A third option would be to acknowledge domestic partnerships or civil unions as a temporary fix. Even though it could be viewed as a compromise, this might act as a stage before complete marital equality.
ADDRESSING COUNTERARGUMENTS
Legalising same-sex marriage, according to its detractors, would upend established family units. Nevertheless, there is no actual evidence to support this assertion. Studies conducted in nations that have legalised same-sex unions reveal no negative effects on the number of heterosexual marriages or the stability of society.[9] Rather, by fostering equality and lessening stigma, legal recognition tends to improve social cohesiveness.
Another argument is that same-sex weddings could not be allowed in India due to personal laws, especially religious ones. Nonetheless, as demonstrated in Shayara Bano v. Union of India, which declared triple talaq to be unconstitutional[10]The constitutional framework permits the state to control secular aspects of marriage. Therefore, regardless of religious beliefs, legal marriage rules may and should be inclusive.
THE ROLE OF CIVIL SOCIETY AND MEDIA
An active civil society effort must go hand in hand with the legal struggle for marriage equality. In order to change public perception, media outlets, queer collectives, and NGOs are essential. Queer identities have already been widely mainstreamed in urban India, thanks in large part to documentaries, literature, and social media narratives. Institutional reforms must now become the focus of the momentum.
Furthermore, inclusive policies have to be implemented by businesses and academic institutions. Gender-neutral benefits, workplace equality, and awareness campaigns can all contribute to the normalisation of same-sex partnerships, which will facilitate legislative reform.
CONCLUSION
Although decriminalisation was an important first step, legal equality is still lacking in the case of the freedom to marry. Indian same-sex couples are still denied the protection and respect that heterosexual couples have, and they continue to exist on the periphery of legal acceptance. The Constitution guarantees everyone equality, freedom, and dignity; if marriage rights are only granted to some people and not others, then these promises are meaningless.
It is not only a question of legislative change; legalising same-sex marriage is also a moral and constitutional requirement. Whether it is by legislative action, judicial rulings, or both, India has to go forward with its equality. The Constitution, in the words of Justice Chandrachud, “is a transformative document.” It aims to change society from a bygone mentality to a contemporary one.[11] Marriage equality for everybody should be a part of this change.
Author(s) Name: Samiksha Ritesh Shelke (D.E.S. Shri Navalmal Firodia Law College, Pune (SPPU))
References:
[1] Navtej Singh Johar v Union of India (2018) 10 SCC 1.
[2] ibid.
[3] Supriyo v Union of India (2023) SCC OnLine SC 1521.
[4] Justice K S Puttaswamy (Retd) v Union of India (2017) 10 SCC 1.
[5] Navtej Singh Johar v Union of India (n 1).
[6] Minister of Home Affairs v Fourie [2005] ZACC 19, 2006 (1) SA 524 (CC).
[7] Obergefell v Hodges 576 US 644 (2015).
[8] Joseph Shine v Union of India (2019) 3 SCC 39.
[9] M V Lee Badgett, When Gay People Get Married: What Happens When Societies Legalize Same-Sex Marriage (New York University Press,2009).
[10] Shayara Bano v Union of India (2017) 9 SCC 1
[11] Navtej Singh Johar v Union of India (n 1) [238].
