Abstract

Homosexuality is a sexual orientation where individuals may feel romantic or sexual attraction towards another person of their same sex. The term “homos” is derived from the Greek term “homos,” meaning “the same.” The LGBTQIA+ members have not been granted marriage rights in India, violating their Right to Equality under Article 14 of the Constitution of India and their fundamental rights under Article 15 and 19 that guarantee the right against discrimination and right to freedom of expression. The Union government contends that the only entity with the authority to establish legislation controlling relationships between individuals is the Legislature, which represents the collective wisdom of the country. Indian society often views same-sex couples as a western concept, and LGBTQIA+ support groups are working towards granting matrimonial rights to same-sex couples. The present status of queer couples in India is ridden with complication like numerous laws governing marriage in different communities. Multiple writ petitions were filed in the Supreme Court, seeking clarity regarding the grant of matrimonial rights to same-sex unions. The court has instructed the Centre to respond with its position on the social benefits that same-sex couples can get regardless of having their marriage status recognized by the law. The Centre argued that a constitutional declaration made by the court on pleas seeking legal recognitions for same-sex marriage might not be a “correct course of action” as the court will not be able to predict, envision, grasp, and deal with its outcome. The apex court unanimously agreed that legalizing same-sex marriage would still involve consequential rights, such as succession, inheritance, and adoption, linked to religion-based personal laws. If the court decides to support same-sex marriages legally, it will inadvertently be rescinding a number of legal provisions. The constitutional bench noted that differentiating personal laws of different communities would be necessary if the court were to follow the petitioners’ advised route.

Keywords

Homosexuality, Same-sex marriage, Right to Equality, Right to marriage, Sexual orientation, Special Marriage Act, Queer couples, LGBTQIA+

Introduction

This research paper has been undertaken to conduct an in-depth analysis of the Legal status of same-sex relationships in India. Ever since the British, in 1861, enacted Section 377 in the Indian penal code criminalizing homosexuality, homophobia has been deeply ingrained in the Indian society. Although the 2018 repeal of the draconian law was a step in the right direction, we as a nation still have a long way to go. The fact that members of the LGBTQIA+ members still have not been granted marriage rights in this day and age is frankly appalling. Their non-inclusion under the ambit of the Special Marriage Act, 1954 is violative of their Right to Equality under Article 14 of the Constitution of India. The queer community has been deprived of their fundamental rights under Article 15 as well as 19 that guarantee Right against discrimination and right to freedom of expression. Article 15 prohibits discrimination on the grounds of race, caste, sex or place of birth. Discrimination on the basis of a person’s sexual orientation comes under the definition of sex and hence is a violation of their fundamental right as guaranteed under the provision. Moreover, the Right to get married is a vital component of the Right to Life envisaged in Article 21. The constitution guarantees a person the right to marry a partner of their choice. The respondents in the case, the union government contend that the only entity with the authority to establish legislation controlling relationships between individuals is the Legislature, which represents the collective wisdom of the country. As voiced by the petitioners of the case involved in the battle to legalize same-sex marriages, “The role of society in deciding our choice of spouses is non-existent”^[1] and as social circumstances shift, so should the laws that govern them.

Research Methodology

The researcher in order to analyse thoroughly, the legal status of same-sex relationships in India, has relied on a variety of sources, which include judgements, books, journals, internet webpages and databases. The project does not contain any use of empirical data collected through fieldwork. Some of the personal views, findings, ideas, and opinions of the researchers are brought out which are not necessarily of authoritative importance.

Review of Literature

The literature on same-sex marriage in India is vast and growing. A review of this literature reveals a number of key themes. First, same-sex partnerships are becoming more and more accepted in India. The growing number of polls on public opinion that demonstrate that the majority of Indians support same-sex marriage reflect this. For instance, a 2018 Pew Research Centre study revealed that 66% of Indians are in favour of same-sex unions. In comparison to a 2007 study, which revealed that just 39% of Indians favoured same-sex marriage, this is a huge rise.

Second, same-sex partnerships are increasingly being accepted by Indian law. There is a rising movement in India in favour of same-sex unions. In India, a number of organisations are seeking to make same-sex unions legal. These groups have been successful in bringing attention to the problem and rallying support for similar-sex marriages.

Despite these positive developments, there are still a number of challenges to same-sex marriage in India:

• The opposition of some religious groups and political parties

• The lack of a clear legal framework for same-sex marriage

In spite of these difficulties, the movement for same-sex marriage in India is gaining momentum. The movement for same-sex marriage in India is part of a broader movement for LGBTQIA+ rights in India. The legalization of same-sex marriage would be a significant victory for this movement, and it would send a message to the world that India is a country that is committed to equality and human rights.

What is Homosexuality?

In a simple sense, homosexuality is a kind of sexual orientation where a person may feel romantic attraction, sexual attraction or both towards another person of their same sex. The term has been derived from the Greek term ‘homos’ that literally translates to ‘the same.’ In colloquial terms, persons who identify with this orientation are often referred to as a people from the gay community. Additionally, Lesbianism is a common term used to describe female homosexuality. The communities form a significant part of the LGBTQIA+ community across the world.

Homosexuality and same-sex relationships worldwide

As of 2023, same-sex marriages have been legally recognized in 34 nations, the most recent being Andorra. The fight to legalize same-sex marriage began in the 20th century, and Denmark was the first nation to recognise civil unions, without using the term marriage. Later, the Netherlands became the first-ever nation to legalise same-sex marriages. The legislation took effect on April 1, 2001. With some of the notable countries to legalize being Canada, USA, South Africa, Mexico, New Zealand, the Republic of Ireland, there are still a number of countries that have enforced preventative constitutional bans with Georgia and Russia being the most recent ones of out of them. Although the death penalty is technically legal, it is not typically applied in Saudi Arabia, Somalia, or the United Arab Emirates. Only Afghanistan and Iran are known to execute people for having consensual same-sex relations.^[2]

History of status of homosexuality and same-sex relationships in India

In India, the LGBTQIA+ community has a long-recorded history since the ancient times due to the widespread practise of accepting Hindu spiritual traditions and culture across the Indian peninsula. However, there was a turbulent period after the arrival of Islamic and European colonialism, which led to the introduction of laws that criminalised homosexuality. Since independence, there has been substantial progress achieved in easing the restrictions on LGBTQ individuals as well as eliminating the homophobia that persisted under the preceding colonial era.

In the year 2001, a non-governmental organisation named Naz Foundation Trust filed a suit in the Delhi HC demanding the legalization of consensual same-sex relations between adults followed by a Public Interest Litigation that challenged the validity of Section 377 of the IPC. This petition was later dismissed on the grounds that the organization had no locus standi in the matter.

Naz Foundation v. Govt. of NCT of Delhi:

In the case Naz Foundation v. Govt. of NCT of Delhi (2009), the Delhi HC ruled that Section 377 and other legislative restrictions on same-sex activities directly infringe upon the basic rights guaranteed by the Indian Constitution. This case being one involving judicial review, the judgement held validity throughout the territory of India. Section 377 of the Indian Penal Code that criminalized what is referred to as “unnatural offences” to the degree that even private, consensual acts are considered unlawful. This case was later overturned in 2012.

Suresh Kumar Koushal v. Naz Foundation:

In December 2013, India’s top court upheld the statute that criminalises gay, overturning the Delhi high court judgement. Section 377, a statute that had its foundation in Judeo-Christian ethics that was introduced by the British, was a draconian law being used to discriminate against marginalized sections of peoples i.e., the queer community.^[3] The Naz Foundation contended that the law could adversely affect the lives of queer folks and might perhaps manifest as a tool for police abuse. Despite this, the court ruled that it should be up to the Parliament whether or not it wants to enact legislation on the subject.

NALSA vs Union of India:

The 2014 NALSA judgement was a landmark case of the Supreme Court of India that affirmed the rights of transgender individuals assigning them the status of ‘third gender.’ They were granted the freedom to self-identify as male, female or neither, furthermore, the apex court instructed the Central government to take requisite measures to provide the community access to education, healthcare services and employment opportunities. Although the ruling did not directly address the matter of matrimonial rights of same-sex couples, the recognition of LGBTQIA+ rights could potentially pave the way for further validation of same-sex unions in the eyes of law.

A draft version of the Uniform Civil Code proposing to grant matrimonial rights to queer couples was put forward in 2017. The code defined marriage as “the legal union as prescribed under this Act of a man with a woman, a man with another man, a woman with another woman, a transgender with another transgender or a transgender with a man or a woman.”^[4] Similarly it defined partnership as any of these combinations of persons living together. It laid down provisions for partners who had been in a union for a period exceeding two years, giving them the same privileges and responsibilities as married couples, it also made it mandatory for all marriages to be registered with the state. It also allowed all those in a partnership to adopt children and stated that one’s sexual orientation would not play the role of a hindrance to their right to adopt. Both heterosexual and non-heterosexual couples will have equal footing as parents when adopting a child. The draft also calls for the abolition of all marriage related regulations in country, namely the acts governing Hindu marriage and succession, Muslim Personal Law Application Act, Parsi Marriage Act, Indian Christian Marriage Act etc. The code was then presented to the Law Commission for review, after which it was rejected on the basis that a Uniform Civil Code was not particularly essential or desirable at this point of time.

Navtej Singh Johar vs Union of India:

In this ruling, the court came to the conclusion that preserving personal intimacy is at the heart of privacy and that one’s sexual orientation is an important aspect of privacy. It further held that “a person being subjected to discrimination due to their sexual orientation is extremely disrespectful to their dignity and sense of self-worth. Equality demands that the sexual orientation of every person in a society must be safeguarded on an even platform. The right to privacy and the protection of sexual orientation form a part of the foundation of the fundamental rights granted by Articles 14, 15 and 21 of the Constitution.” ^[5] The bench held that the Section 377 deprived an individual of their dignity and on the basis of their sexuality, criminalised their core identity, and also infringed Article 14 by targeting queer individuals as a class. The right to privacy and the right to live life with dignity are both recognised as elements of Article 21 in the Indian Constitution. It finally reinstated the 2009 Delhi HC judgement, abolishing Section 377 of the IPC for good.

Indian society often views same-sex couples as a western, alien concept. Since the nation remains trapped in this mindset, LGBTQIA+ support groups have decided to develop a step-by-step strategy to address the difficulties queer people experience. Earlier the efforts of such groups were to get laws like Section 377 repealed and put LGBTQIA+ friendly legislations into effect. Despite multiple hurdles, these organisations are working towards securing the right to same-sex marriage, and remain hopeful, and motivated by the progress that has been achieved by the queer community in numerous western nations.

Current situation of same sex couples

Despite the fact that queer unions can obtain rights and privileges as a live-in couple, according to a Supreme Court of India ruling in August 2022, our nation fails to recognise registered marriage or civil unions for same-sex couples. However, live-in relationships are not subject to regulations like marriages are. No legislation specifies the privileges, obligations, and responsibilities that individuals have to a live-in relationship. Since India as a nation harbours people of various religions, caste or creed, there exist multiple regulations governing marriage in different communities. The lack of existence of a unified law regulating marriage in India creates significant complications in the current scenario. Dozens of same-sex marriages within Hindus in India have been reported, where priests have been performing the marriage ceremonies both in India and abroad.

Two same-sex couples, filed writ petitions in the Supreme court seeking clarity regarding the grant of marriage rights to queer couples in India in November 2022, which came to be known as Supriyo vs. Union of India. Represented by renowned advocates involved in the case decriminalizing Section 377 of the IPC, the petitioners contended that Section 4(c) of the Special Marriage Act mentioning marriage between only a man and a woman were violative of rights of same sex couples preventing them from enjoying the same marital rights that heterosexual couples enjoy. The petition has been linked to several similar pleas involving other personal laws such as the Hindu Marriage Act and the Foreign Marriage Act. The respondents in the case, The Union of India opposed granting marital rights and the right to start a family to same-sex couples owing to majoritarian societal views, consistent legislative policies and cultural and religious history of the nation.

Relying on landmark judgements such as NALSA vs Union of India and Navtej Singh Johar vs Union of India, the petitioners requested that Section 4(c) of the act be deemed unconstitutional by the honourable court. They further went on to contend the fact that queer marriages in India getting legal validation puts the Right to freedom of expression, equality and to live a dignified life under Articles 19, 14 and 21 respectively, in jeopardy. In January 2023, several pending petitions from Delhi and Kerala HC regarding the same matter were transferred to the apex court along with the main petition. The court while deliberating the ambit of gender and whether it went beyond the biological sex of a human said, “The very concept of a man and a woman is not an absolute based on genitals” Parties against the legalization of same-sex marriages contended that the replacement of terminology like “a man and a woman,” with “person” in the Special Marriage Act might conflict with already-existing laws, to which the petitioners responded by stating that the term same-sex marriage was one of a narrow nature and that if the bench decided to provide matrimonial rights to queer couples, it should be for consenting adults across “bodily gender and sex spectrum”.^[6]

The bench after hearing the plea on April 27th instructed the centre to respond to the court with its position on the social benefits that same-sex couples can get regardless of having their marriage status recognised by the law. For something as straightforward as a pension, provident fund, gratuity, or perks, which are exclusively accrued during marriage. Someone who merely provides care has no recourse to it. The centre stays firm on its stand that a bench with merely five entities should not decide for the entire country, rather, it should be resolved by the legislature through the enactment of laws. It claims that the issue of matrimonial rights is a matter that affects the society at large and hence, a public opinion should be taken into account. The parliament being the representatives of citizens, plays the role of the ‘voice of the society.’ It contends that although the right to love, cohabit, the right to have a sexual orientation and pick a partner of their choice are all fundamental rights, there is no existence of a fundamental right to seek recognition of that partnership as a matrimonial union.

Subsequently, in an affidavit filed before the supreme court, the centre stated the petitioners cannot claim a fundamental right for same-sex marriage to be recognised by the state, despite the decriminalisation of Section 377 of the IPC. In May 2023, the bench decided to reserve its judgment on the matter. The union government made it clear to the court that any constitutional declaration made by it on pleas seeking legal recognition of same-sex marriage might not be a “correct course of action” as it will not be able to predict, envision, grasp and deal with its consequences.”^[7] Although in its decision, the court made it abundantly clear that it may stop short of legally recognizing queer marriages, it remained steadfast in its commitment towards the issue of a constitutional declaration which the legislature may decide to implement by passing necessary legislation. The petitioners were given the option to offer suggestions on subject of exploring administrative steps. The centre also agreed to set up panel under the guidance of the Cabinet Secretary to examine these suggestions for resolving concerns of same-sex couples.

Nearly all personal laws in India define marriage as a partnership between a man and a woman. The apex court unanimously agreed that even if the bench decided to legalize same sex marriage, there would still be the matter of consequential rights that may arise, such as succession, inheritance and adoption that are linked to religion based personal laws, and that bench will refrain from determining these rights. The constitutional bench observed during the hearing that differentiating the personal laws of various communities would be necessary if the court were to follow the petitioners’ advised route in the current case. If the court decides to support same-sex marriages legally, it will inadvertently be rescinding a number of legal provisions since marriage law is intrinsically woven with personal laws.

Suggestions & Conclusion

In legal, political, and social terms, marriage is viewed as one of a person’s key defining characteristics. It is a framework that has been legally recognised by a variety of personal laws as a means of acknowledging a relationship between two people. In India, the right to marriage is officially acknowledged as a constitutional right, allowing a person the liberty to marry the partner of their choice. In light of the discussion just had, it is contended that the issue at hand does not concern the grant of matrimonial rights but rather the protection of the petitioners’ rights and, by extension, the rights of all citizens who identify as members of the LGBTQIA+ community. The apex court would be unsuccessful in its responsibility to safeguard the rights of the citizens if it refers the case to the parliament and fails to make use of its judicial authority, since Article 32, the legislation that petitioners have approached it under often referred to as the “Soul of the Constitution.” Finally, it should be nobody’s case to argue that the apex court ought not to rule on this subject and that only the parliament had the authority in the present case.

AUTHOR:

Arunima Raman

National Law University Odisha

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[6]Notion of man, woman not absolute based on genitals: SC, THE PRINT (April 18 2023), https://theprint.in/india/notion-of-man-woman-not-absolute-based-on-genitals-sc-2/1526034/ (Last visited on June 12, 2023).

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