By - King Stubb & Kasiva on April 24, 2023
The issue of same-sex marriage has been a topic of debate in India for several years, with advocates pushing for legal recognition of same-sex unions. In 2018, the Supreme Court of India partially decriminalized homosexuality by striking down Section 377 of the Indian Penal Code, which criminalized same-sex relations. Since then, the country has witnessed a growing demand for legalizing same-sex marriage. This article provides an insight into the current state of same-sex marriage in India in 2023 and the progress made so far in this regard.
Many developed countries have recognized same-sex marriage in India as a human and civil right and transgender individuals have fought for legal recognition of their rights. The Indian Supreme Court's verdict in the National Legal Services Authority v. Union of India & Ors[1] attempted to legally recognize the rights of transgender individuals. In addition, the Navtej Singh Johar v. Union of India[2] case decriminalized homosexuality in India. However, same-sex marriage is not legally recognized in India, leaving LGBTQ+ individuals without the ability to marry the person of their choice.
This lack of recognition has contributed to the stigmatization of homosexuality in India, where marriage is viewed as a sacred institution. The government's argument against same-sex marriage in India is rooted in a limited binary understanding of gender and a belief that such marriages are incompatible with Indian culture and values. However, denying individuals the freedom and choice to marry is a violation of their fundamental rights and has constitutional implications. The right to marry is recognized as a universal right under Article 16 of the Human Rights Charter[3].
Section-377[4] violates Article-15 of the Constitution[5] by discriminating against people based on their gender and sexuality. Article-15 prohibits discrimination on various grounds, including gender, and aims to eliminate gender-based stereotypes. Section-377 promotes traditional sexual relations for men and women and discriminates against homosexuals based on their sexual orientation. The provision's objective of imposing a public code of sexual morality is not reasonable and is based on stereotypes that sex is solely for reproduction.
This section also violates the personal rights of gay men and lesbians by criminalizing their consensual sexual activities. Additionally, the current definition of obscenity under Section 292 of the Indian Penal Code may criminalize gay and lesbian texts. The section's criminalization of male homosexuality creates the impression that it is depraved and can corrupt people's minds and bodies.
In a recent development, the Indian government has opposed the legalization of same-sex marriage in the country, stating that the issue should be discussed and debated in parliament rather than the courts. The government has claimed that the petitions seeking legal recognition of same-sex marriage in India only represent "urban elitist views" and do not reflect the wider views of the nation. Furthermore, the government has asserted that any court decision to recognize same-sex marriage would require significant changes to the law. At least 15 appeals have been filed with the court, stressing the need for legal recognition of same-sex marriage to guarantee basic rights and privileges to same-sex couples.
In a separate case, two same-sex couples approached the Supreme Court seeking recognition of their marriages under the Special Marriage Act. The Supreme Court issued notices on the plea and directed the transfer of all similar petitions pending before different High Courts to itself in January 2023. The government opposed the pleas, stating that legalizing same-sex marriage in India would upset the balance of personal laws and societal values associated with the traditional concept of an Indian family. The petitioners argued that their right to life, personal liberty, and dignity, as guaranteed by the Constitution, should not be denied based on their sexual orientation.
The Supreme Court acknowledged the significant issue of legalizing same-sex marriage and formed a five-judge constitutional bench to decide on the matter. In 2018, the Supreme Court partially decriminalized homosexuality by striking down a colonial-era ban on gay sex. However, same-sex marriages are still unrecognized under Indian laws. The proceedings of the case will be broadcast live on the court website and YouTube, with Chief Justice Dhananjaya Yashwant Chandrachud leading the five-judge bench.
In conclusion, the recognition of same-sex marriage in India has been a topic of much debate and discussion. While the Indian government has opposed its legalization, the formation of a constitutional bench by the Supreme Court to consider the issue is a positive step towards ensuring equal rights and dignity for all individuals, regardless of their sexual orientation.
It is worth noting that progress has already been made in recognizing the rights of LGBTQ individuals in India, including the recognition of transgender persons as a “third gender”[6] strengthening the right to privacy and acknowledging sexual orientation as a fundamental aspect of an individual's privacy and dignity[7], and decriminalizing homosexual sex.
However, more work needs to be done to ensure that same-sex couples can enjoy the same benefits and protections as heterosexual couples. Ultimately, the decision to legalize same-sex marriage in India will have far-reaching implications for human rights, and it is important that all viewpoints are considered carefully in order to make an informed decision.
The Indian government has filed a court document opposing the legalization of same-sex marriage, arguing that the issue should be debated in parliament instead of the courts. The government claims that any court decision to recognize same-sex marriage would require a significant rewriting of the law and that the petitions seeking legal recognition of same-sex marriage represent "urban elitist views" and do not reflect the wider views of the country.
The argument is that Section 377 promotes traditional sexual relations between men and women, while discriminating against individuals who identify as homosexual based on their sexual orientation. This discriminatory treatment is in violation of Article 15 of the Constitution, which prohibits discrimination on the basis of various grounds, including gender, and seeks to eliminate gender-based stereotypes. The provision's objective of imposing a public code of sexual morality is not reasonable and is based on stereotypes that assume sex is only meant for reproduction.
Same-sex marriage is not legally recognized in India, which means that LGBTQ+ individuals are not allowed to marry the person of their choice. This lack of recognition has contributed to the stigmatization of homosexuality in India, and the government's argument against same-sex marriage is rooted in a limited binary understanding of gender and a belief that such marriages are incompatible with Indian culture and values. However, denying individuals the freedom and choice to marry is a violation of their fundamental rights and has constitutional implications.
[1]National Legal Services Authority v. Union of India & Ors, (2014) 5 SCC 438
[2]Navtej Singh Johar v. Union of India, Writ Petition (Criminal) No. 76 of 2016 (India)
[3]United Nations General Assembly. (1948). Universal Declaration of Human Rights. Retrieved from https://www.un.org/en/about-us/universal-declaration-of-human-rights#:~:text=Article%2016,marriage%20and%20at%20its%20dissolution.
[4]Naz Foundation v. Govt. of NCT of Delhi, (2009) 160 DLT 277.
[5]Constitution of India, art. 15.
[6]National Legal Services Authority v. Union of India & Ors., (2014) 5 SCC 438.
[7]K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors., (2017) 10 SCC 1.
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