Introduction

The issue of same-sex Marriage has been highly debated and controversial, and the decision by the Supreme Court to hear the case of legalisation of same-sex marriage now awaits a final verdict. Same-sex marriage is not legally recognised yet in India. Gay couples getting married outside of India through Hindu rituals has been quite a phenomenon. In India, LGBT couples get mocked regardless of marriage status, they also face social ostracisation and are harassed by police officials.

The historic verdict of decriminalisation of Section 377 of IPC brought a ray of hope for LGBT couples. It was introduced during British Rule in India, based on Victorian morality, to criminalise carnal intercourse against the order of the nature and was a law mostly used to prosecute homosexual activity. It was abolished in 2018 by the Supreme Court thus empowering and enabling the LGBT community to fight for their rights. The way forward then became appealing for legal recognition of same-sex marriage, thus several lawsuits have been filed in courts all over India about the legality of Indian same-sex marriages.

The Supreme Court hearing clubbed together about 20 petitions asking for legal recognition of same-sex marriage under secular marriage laws—the Special Marriage Act and the Foreign Marriage Act. Petitioners have argued that not recognising same-sex marriage is a violation of their rights to equality, dignity and freedom of expression– discussions ensued on whether non-recognition of marriage violated their right to dignity and if Special Marriage Act can accommodate same-sex marriage or not. The Centre has appealed to form a committee to address same-sex marriage concerns.

In Indian society, marriage plays an important role, it is emphasised as a way to live a ‘complete’ life. A married couple has an easier time manoeuvring life and is seen as respectable members of society. The social perspectives on same-sex marriage range from support to disapproval to violent persecution. The Madhya Pradesh government urged the Supreme Court not to rush same-sex marriage sanction since it can rip apart the social fabric of the country. The Central Government views same-sex marriage demands as urban and elitist. However, a study by the Centre for the Study Developing Societies (CSDS)-Lokniti in collaboration with Azim Premji University showed rural India had lower rejection than urban– the report also showed people from Uttar Pradesh and Hindus have the highest acceptance rate.

Recognising same-sex marriages would require altering a range of other laws such as adoption, divorce, cruelty, maintenance, property inheritance, etc. Pension, provident fund, gratuity, benefits – all accrue only in a marriage– a range of financial and legal benefits decisions will need amending once same-sex marriages are legalised. India also has personal laws that act as the greatest hindrance to same-sex marriage legalisation, it not only complicates the procedure but also makes it impossible to form a codified law for same-sex marriage. The Supreme Court has thus held that the ruling does not aim to change personal laws and only limits the assessment of the constitutionality of same-sex marriage under the existing Special Marriage Act. So can the Special Marriage Act be amended to facilitate same-sex marriage? Or so should the LGBT community settle for rights under a  Civil Union arrangement (short of marriage) instead of full legal recognition of same-sex marriage?

Status of Same-Sex Marriage in India

Marriage between people of the same-sex is an unimaginable concept for more than half of the world, considering only 34 countries have legalised same-sex marriage. Even within India, 5 years post the landmark judgement of decriminalisation of homosexual activity under Section 377 by the Supreme Court of India in the case of Navtej Singh Johar v. Union of India (2018), the momentum on the social and legal front realising marriage rights to same-sex couples has been dilatory. 

In India, marriage is largely a religion-driven idea, it is an institution that allows the union of heterosexual couples as per what is permissible under respective religions. The several personal laws are a testament to this very notion. However, it can be argued that personal laws are governed by statutes and often have no scriptural basis, as evident from the 2005 amendment to the Hindu Succession Act to the issue of maintenance under Islamic law and the abolition of triple talaq. The statutes by itself may be secular since they are subject to the limits and mandates of the Indian Constitution, but the various religious sentiments and perspectives on marriage being preserved and codified separately thus act as a hindrance towards marriage equality. The personal laws as well as the Special Marriage Act do not leave any room for gender-neutral interpretations, there is no legal ground for same-sex marriage under existing laws. Now this leaves us with the question of whether the right to marriage by itself is considered a fundamental right and if yes then how it can be extended to same-sex relationships hence laying the ground for the constitutionality of same-sex marriages.

Contrary to Article 16 of the Universal Declaration of Human Rights, the Indian Constitution does not explicitly recognise the right to marriage as a fundamental or constitutional right. Although marriage is governed by several statutory laws, its recognition as a basic right only came about as a result of Supreme Court rulings. According to Article 14 of the Constitution, such a declaration of law has the force of law in every court in India.  In 2014, the Supreme Court took notice of press accounts of a panchayat-authorized gang rape of an Indian woman. The woman had a relationship with a man from a different group, thus the community panchayat ordered this “punishment.” The Supreme Court ruled unequivocally that “an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage. Such offences are resultant of the State’s incapacity or inability to protect the Fundamental Rights of its citizens. Article 21, which deals with the right to life and personal liberty, is an all-encompassing provision that includes within its fold the inherent right to marry someone of one’s own choice.

The past judgements did not with absolute certainty uphold marriage as a fundamental right nor did it address it in the context of same-sex individuals. Thus it can be argued that the right to marry is only exclusive to heterosexual couples. The inherent right to marry the person of one’s choice is included within the scope of Article 21, which deals with the rights to life and personal liberty. However, the constitutionality of the definition of marriage as being limited to one man and one woman can be contested for violating Articles 21 (right to choose a life partner/right to a life with dignity/right to autonomy) or 14 (discrimination based on sexual orientation), or at a sub-constitutional level.  Furthermore, it has been deemed outdated and unreasonable for the State to legitimise sexuality within marriage for the sole purpose of procreation. Article 15 does not specifically identify sexual orientation as a prohibited basis for discrimination. But the Supreme Court under the National Legal Services Authority of India v. Union of India case, ruled that all genders are included in the term “person” as defined by Article 14. Additionally, it was decided that “sex” in the sense of discrimination under Article 15 includes “gender identity” and that the term is not only a binary of male or female but rather flexible or a spectrum.

The case of Navtej Johar v. Union of India is the very foundation for challenging the constitutional provisions that limit marriage to “one man, one woman,” it is violative of Articles 14, 15, 19, and 21 of the Constitution.

Lastly, in the ongoing Suprio v. Union of India and other connected cases, the Supreme Court at the hearings of same-sex marriage pleas said the fundamental components of marriage are protected by constitutional norms and disagreed with the claim that there is no right to marry under the Constitution. According to Chief Justice of India D Y Chandrachud, who is in charge of a five-judge Constitution bench hearing petitions for same-sex marriage legal recognition, “To state…that there would be no fundamental right to marry under the Constitution would be far-fetched. What are the core elements of marriage? If you look at each of these elements, they are protected by Constitutional values…”

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