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A Supreme Court bench composed of Chief Justice DY Chandrachud and Justices PS Narasimha and JB Pardiwala has asked the Centre to file a reply to all the petitions asking for legal recognition of same-sex marriages by February 15, 2023.
Introduction
The right to marry is a part of the right to life under Article 21 of the Constitution of India, 1950. This was also established in the landmark case of Lata Singh v. State of Uttar Pradesh (2006) where the Supreme Court of India upheld the right of an individual to marry any person of their choice and recognized the same as a fundamental right.
In India, same-sex relations were not recognised up until 2018 recently, when Article 377 was read down by the Supreme Court of India in Navtej Johar v. Union of India (2018), after which homosexuality has been decriminalised. But still, the marital union between same-sex couples is not recognised by law in India and consequently, they are not entitled to any spousal privileges, those being adoption rights, inheritance rights, etc.
If we take a look at our Constitution and various laws, neither the laws nor the Constitution of India, 1950, mention people of the queer community as a subject. Even in the Navtej Johar judgement, though the judges discuss various foreign cases which have legalized same-sex unions in other countries at length, they refrained from making any comments about whether such unions need to be given marriage or civil union rights in India or not. Merely decriminalizing sexual intimacy between same-sex couples would not place them at an equal footing with heterosexual couples. This can only be done by affirmative action in their favour, otherwise, they would be subject to the same unequal and discriminatory behavior for years to come. Same-sex relations are still seen with the lens of shame in India, and this has a lot to do with the obsession over marriage which is seen as a necessity. Along with marriage (heterosexual) also comes various rights which unmarried couples (except those in long term live-in relationships) do not have.
Heteronormative Marriage Laws: Is Law Really Equal For All?
Due to the religious and cultural diversity in India, people are free to choose the religious law under which they want to get married. Some of these laws include the Hindu Marriage Act, 1955, Muslim Personal Law (Shariat) Application Act, 1937, Indian Christian Marriage Act, 1872, Special Marriage Act, 1954 etc. These laws have been applied as well as legally interpreted in a heteronormative manner till date, having no space for same-sex relationships.
Hindu Marriage Act, 1955
The preamble of the Hindu Marriage Act, 1955 explicitly states that the Act applies to “any two Hindus” and does not say that one of them should be a man and the other should be a woman. However, if we look at Section 5 of the same law, it states words like “bride” and “bridegroom” which points out to the presumption of heteronormativity of relationships while drafting the law.
Indian Christian Marriage Act, 1872
Under Christian law, there is a heterosexual notion to marriage despite a lack of any explicit definition of marriage stated anywhere in the law. However, for example, if we look at Section 60, it states that the age of man should be 21 and the age of the woman should be 18. Drafting of such provisions in the law indicates the heterosexual notion intended for this law.
Muslim Personal Law (Shariat) Application Act, 1937
In Muslim law too, though marriage is governed by their personal laws, it is seen as a civil contract. Since the purpose of the civil contract is procreation, this again presumes the heterosexual nature of Muslim marriages.
Special Marriage Act, 1954
If we take a look at the Special Marriage Act, which is open to all religions and is a secular law, there are certain heterosexual underpinnings to it. For example, when it defines what prohibited relationships are, it uses words like man and woman.
Adoption Laws
Because same-sex marriages are not recognised in India, such couples do not get a lot of benefits that heterosexual couples do, such as the right to inherit spouse’s property, maintenance, guardianship etc. Even the adoption laws in India, such as the Hindu Adoptions and Maintenance Act, 1956 (“HAMA”) and the secular Juvenile Justice (Care and Protection of Children) Act, 2015 do not provide for same-sex couples to freely adopt a child of their choice. For instance, in the HAMA, 1956, Section 7 mentions the capacity of a male to take a son or daughter for adoption. The proviso to this mentions that such a man has to take the permission of his “wife”.
It is very clear that all personal laws have heterosexual underpinnings to them, thus, leaving no room to accommodate for same-sex marriages under these acts. This socio-economic marginalization and othering that the queer community has to undergo has also been judicially acknowledged in the case of Shivani Bhat v. State of NCT of Delhi and Ors. (2015) where a transgender man was illegally confined in his grandparent’s home solely on the basis of his gender identity.
Another aspect to marriage, commonly seen in India, is the freedom which married couples have to declare and express their love publicly, thus legitimizing their relationship even further. India has always had a heteronormative culture where free space has not been created for the LGBTQ+ individuals to freely express their love for their partners because of which their love is not seen as something that is real and worthy of respect.
The government plays a key role in legitimizing marriage unions by conferring benefits on married couples and becomes an agency which confers recognition and grants dignity to marital unions, thus, sidelining same-sex unions and treating them in an inferior way.
Judith Butler, a queer feminist and gender theorist said in an interview that when an entity places heterosexual and same-sex relationships relations on a different footing altogether, what is actually taken into account is their sexual orientation solely, and not their marital status. That being said, if we take the case of Navtej Johar (though the bench refrained from giving out a ruling on same sex marriages per se), Chief Justice Misra and Justice Khanwalikar, in their respective conclusions, said that if one discriminates solely on the basis a person’s sexual orientation, it would lead to a violation of their freedom to express, which is a fundamental right.
Choosing a person for marriage: A Fundamental Right
At this point, it is imperative to discuss the case of Shakti Vahini v. Union of India (2018). Shakti Vahini is an NGO which filed a petition in the Supreme Court to take preventive actions against honor crimes.
Justice Deepak Mishra, the then Chief Justice, started the judgement by quoting from Simone Weil- “Liberty, taking the word in its concrete sense consists in the ability to choose.”. The Apex Court, in this case, came to the conclusion that marrying a person of one’s own choice is a fundamental right which should be accessible to all adult persons.
In another case of Shafin Jahan v. K.M. Ashokan & Ors. (2018), which was relied on by the Navtej Johar judgement, it recognises the right of a Hindu woman to freely convert to Islam and marry a Muslim man.
The Supreme Court held that it is the constitutional right of a citizen of India “to be able to live her life on her own terms” and that “curtailment of the expression of choice of an individual will destroy the individualistic entity of a person”.
If we read the cases of Shakti Vahini, Shafin Jahan and Navtej Johar together, we can effectively come to the conclusion that there is room to argue for same-sex marriages in India through a combined reading of these cases.
Although in the case of Navtej Johar, the judges did not delve into any discussions on the topic of same sex marriages, but they did recognise the LGBTQ+ community as a sexual minority which has borne the brunt of hostile discrimination without any justification. Article 15 of the Constitution of India, 1950 prohibits discrimination on certain grounds alone. In the Navtej Johar case, Justice Indu Malhotra said that Article 15 should be extended to include the ground of sexual orientation, so that discrimination on the grounds of sexual orientation alone should mean that the Article is being violated, which in turn would violate a person’s fundamental rights.
Same-sex Live In Relationships In India
In the case of S.P.S. Balasubramanyam v. Suruttayan (1994), the Supreme Court ruled that a man and a woman living together under one roof for a couple of years will be presumed to be husband and wife. In another case of Indra Sarma v. V.K.V. Sarma (2013), the Supreme Court held that a woman who begins to live with a man not knowing that he is already married would still be considered as a “domestic relationship” under the Domestic Violence Act, 2005.
But, unfortunately, the Court in the case of Indira Sarma choses to observe that the clause refers to two persons of the opposite sex, on the ground that Section 2(a) defines an “aggrieved person” as a woman, hence, not taking same-sex couples under its purview. These rights, such as inheritance, right to nominate partner as nominee in gratuity, pension etc., child adoption rights etc. which have been given to heterosexual couples do not apply to same-sex couples.
On the contrary, in September 2020, the Orissa High Court in the case of Chinmayee Jena v. State of Orissa (2020)9, upheld the right of a transgender man to be in a live-in relationship with his same-sex partner and self-determination of sex/gender. The court further upheld that all the protections given to women under the Domestic Violence Act, 2005 would apply to the woman partner in this case too. In another case of Madhubala v. State of Uttar Pradesh (2020), the Uttarakhand HC held that same-sex couples have a right to live together, and such a consensual relationship where such couples are co-habiting cannot be held to be illegal, because right to determination and choice of sexual orientation in partner is a fundamental right under Article 21. But the court went on to mention that in India, still, the LGBTQ+ individuals cannot enter into a wedlock, hence reiterated the fact that same-sex couples still do not have the rights given to heterosexual couples post marriage.
LGBTQ Rights in India
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Before the Decriminalisation of S. 377 |
After the Decriminalisation of S.377 |
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Any act against the order of nature is a criminal act. |
No such offence exists as the SC struck down S. 377 |
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Any sexual act between Man and Man, woman and woman, or human being and animal are criminal act. |
The offence is decriminalised but not legalised in India. |
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Punishment – 10 years of imprisonment with a fine extendable to life imprisonment. |
No Punishment |
Global Scenario
According to the Human Rights Campaign, a US-based LGBTQ advocacy group, only 32 countries around the world recognise gay marriage.
In most countries that allow same-sex marriage, marriage equality was introduced by legislation. Gay marriage was recognised by a court ruling in only 10 countries.
UNITED STATES: In 2015, the US Supreme Court in a 5:4 ruling recognised gay marriage. The SCOTUS reasoned that limiting marriage solely to heterosexual couples violated the 14th Amendment guarantee of equal protection under the law.
The decision led to a nationwide legalisation of same-sex marriage. Thirty-two states had already recognised gay marriage before the ruling. In 2003, Massachusetts became the first state in the United States to legalise same-sex marriage, following a ruling by the state’s Supreme Court.
AUSTRALIA, IRELAND, SWITZERLAND: Following a nationwide referendum in 2017, Australia’s Parliament passed a law recognising same sex-marriage. The referendum showed overwhelming support — 62% to 38% — in favour of the law. In Ireland and Switzerland too, a popular vote by the majority led to a formal recognition of LGBTQ marriages.
SOUTH AFRICA: South Africa was the first African country to legalise same-sex marriages in 2006, following a decision by the highest court in the land deeming the erstwhile ‘Heterosexual-Only Marriage’ policy to be violative of the equal rights guarantee enshrined in the constitution.
TAIWAN: In 2019, Taiwan became the first Asian country to recognise same sex-marriage. The legislation was brought in following a court ruling in 2017.
ARGENTINA: In 2010, Argentina became the first Latin American country and the 10th country in the world to allow same-sex marriages nationwide. Even before a national law was passed, several cities and local units had allowed civil unions for gay couples.
CANADA: Same-sex couples in Canada have enjoyed the legal benefits of marriage since 1999 when the federal and provincial governments extended marriages under the Common Law to LGBTQ couples. Following this, a string of legislation on the subject commenced in 2003, making same-sex marriage legal in nine of Canada’s 13 provinces and territories. This was formally recognised in 2005 by Canada’s Parliament, which passed nationwide legislation to this effect.
Indian Government’s Stand
In 2021, the Centre has opposed any move to accord legal sanction to same sex marriages in India. Decriminalisation of Section 377 of the Indian Penal Code does not automatically translate into a fundamental right for same sex couples to marry, the Centre’s counsel told the Delhi High Court.
Govt’s statements:
The fundamental right under Article 21 is subject to procedure established by law and the same cannot be expanded to include the fundamental right for a same sex marriage to be recognised under the laws of the country which in fact mandate the contrary.”
The institution of marriage had a certain sanctity attached to it across the country, it added. It enjoins the parties belonging to different sexes to bring up children in the “most natural way possible”. Several rights and liabilities flow from such a marriage.
Precedents to support same-sex marriage recognition
Non-recognition is sex discrimination
Article 15 of the Constitution prohibits discrimination based on sex, among other grounds.
Sex discrimination under both Articles 14 and 15 (amongst several provisions in the Constitution) includes discrimination on the basis of gender identity and sexual orientation.
Choosing a partner of any gender is key to privacy, and autonomy. In the 2017 Puttaswamy judgement, the Supreme Court affirmed autonomy over personal and intimate choice. Similar observations were made in the earlier Shafin Jahan Vs Asokan KM judgement.
The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith,” said the Shafin Jahan judgement.
Right to Life with Dignity
In Kharak Singh Vs State of UP in the Puttaswamy judgement, it was reiterated that imposing solitude by denying marital rights to same-sex partners violates their Right to Life with Dignity.
In India, where marriage is often the only socially acceptable intimate relationship, a law prohibiting marriage to a partner of one’s choice forces the individual to choose between living a secret life, always in fear of being exposed, and living in solitude. That is an inhibited life. It is not a life with dignity. Therefore, marriage as defined as ‘one man, one woman’ must be construed as violating the right to life with dignity under Article 21.”
Right to free expression
Supreme Court judgments termed self-identification of gender as protected under right to free expression.
“Any discrimination on the basis of one’s sexual orientation would entail a violation of the fundamental right of freedom of expression,” said the Supreme Court in its landmark 2018 judgement decriminalising homosexuality.
Moreover, the Indian judiciary has protected same-sex live-in relationships.
Supreme Court on IPC 377, Homosexuality
Key Points of the Judgement
Conclusion
Even though the Constitution of India enshrines us with the freedom of self-determination and the choice of a life-partner, India’s attitude towards same-sex marriages is still restrictive. The laws either have an explicit heterosexual underpinning to them, or, generic provisions have been interpreted to cater to heteronormativity. A relative change in the attitude of the judiciary has been observed with respect to making space for the LGBTQ+ community to exercise their rights and to be able to live with a partner of their choice. However, still, we are much away from handing them equal rights afforded to heterosexual couples – that of same-sex marriage and the resultant benefits that come from it.
Way Ahead
Educating the masses about the difference between Gender and sexuality would bring positive change in social attitudes towards same-sex individuals/couples. India has taken a giant leap towards modernity, acceptance and equality, and now the need of the hour is to maintain equality before the law of all sexual orientations and identities.
The introduction of same-sex marriage would not eliminate this discrimination against same-sex married couples, but it would remove the problem of ignorance, and remove one of the excuses for prejudice. Furthermore, the segregated status of civil partnership, including the separate terminology, in itself defines same-sex couples as “other”, and thereby promotes stigmatisation, prejudice and discrimination against LGBT people. This includes homophobia, biphobia and transphobia in forms including bullying and hate crime. The introduction of same-sex marriage would help reduce these forms of prejudice against LGBT people because it would eliminate the official “otherness” status of LGBT people. It would also help to reduce prejudice and discrimination more widely, because it would be a clear public demonstration of Scotland’s refusal to accept discrimination, and embrace of diversity, equality and freedom. By reducing prejudice and discrimination, the introduction of same-sex marriage will enhance the safety, self-esteem, health and wellbeing of LGBT people of India.
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