INTRODUCTION
Same-sex marriages are marriages among two individuals of the same gender. These marriages are as of now not legalized in India although efforts to have them legalized and recognized are ongoing. This is an issue of much significance as it touches upon the fundamental human rights of LGBTQ+ individuals and recognition and protection of their relations. Legalization of same-sex marriages would provide LGBTQ+ couples legally valid recognition as well as protection and foster broader societal acceptability as well as restriction upon discriminatory action against the community.
Historical Evolution Development
Same-sex relations are no stranger to India. Same-sex love and gender fluidness were expressed in literature, in temple paintings (such as Khajuraho), and in literature like the Kama Sutra during ancient and pre-colonial India. There is no documented criminalization or societal stigma.
The tide began to turn under British colonial authorities when Section 377 of the Indian Penal Code came into effect in 1861 to prohibit “unnatural sex,” including consensual same-sex intercourse. This colonial code enshrined homophobia and stood in legislation for more than 150 years.
In 2001, the Naz Foundation filed a PIL in the Delhi High Court challenging Section 377. A major breakthrough occurred in 2009, when the court decriminalized consensual same-sex relationships. However, in 2013, the Supreme Court reversed this judgment, reinstating Section 377 and pushing the LGBTQ+ movement backward.
The most important development came in 2018, when the Supreme Court in Navtej Singh Johar v. Union of India struck down Section 377 once again so as to de-criminalize homosexuality and affirm rights to dignity and privacy to those from the LGBTQ community.
Post-2018, focus shifted to legalizing same-sex marriage. Multiple petitions were filed seeking recognition under existing marriage laws. In 2023, a five-judge Supreme Court bench heard arguments but ultimately refused to legalize same-sex marriage, stating it was the legislature’s role, not the judiciary’s.
Same-sex couples in contemporary India are permitted to co-habit but do not have authorization to legally marry or adopt. Activism continues to happen and pressure to have civil partnerships or legislative reform is growing.
From criminalization and elision to restricted legal recognition and ongoing social struggle, the journey of same-sex marriage in India reflects the country’s changing approach to gender and sexuality.
Arguments in Favor of Legalizing Same-Sex Marriage
- Constitutional Rights and Equality
Articles 14, 15, and 21 of the Indian Constitution guarantee that equality before law, non-discrimination, and the right to life and personal liberty. Denying same-sex couples the right to marry violates these fundamental rights.
- Economic and Social benefit
Strengthening Families and Communities: Marriage provides social and economic benefits to couples and their families which will also benefit the same-sex people.
- Legal Benefits
Inheritance, tax benefits, health insurance, and next-of-kin rights are currently denied.
- Global acceptance
Over 35 countries worldwide have made historic efforts to legalize gay marriage, and this list comprises some of the prominent countries like America, Britain, Canada, Germany, South Africa, and Taiwan. As the largest democracy of the world, India is coming under increasing pressure from some of the international bodies and countries to make its policies congruent to internationally accepted norms of human rights.
Arguments Against Legalizing Same-Sex Marriage
- Cultural and religious beliefs: Various cultural and religious groups believe that an institution of marriage should be between a male and a female only.
- As they think that altering the long-standing definition of marriage would contradict to foundational beliefs and values of theirs, they object to it.
- Procreation: Others again argue that the principal objective of conjugal life is that of propagating and that gay couples do not have biological children.
- Consequently, it is their assertion that same-sex marriage ought to be prohibited as it contravenes the established natural order.
- Legal issues: There are fears that legalization of same-sex marriages can lead to legal issues such as those relating to inheritance, taxing, and property rights.
- Others have opined that it would be much too challenging to amend all of its laws and regulations to permit same-sex marriages.
- Challenges in Child Adoption: Child adoption by LGBTQ couples can lead to stigma from society, discrimination against the child and parents, and negative impact on child emotional and psychological health, especially among Indian societal structures where acceptance of LGBTQIA is not universally present.
CASE LAW
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Supriyo @ Supriya Chakraborty & Anr. v. Union of India (2023)
In Supriyo v. Union of India (2023), a five-judge Constitution Bench of the Supreme Court of India examined whether same-sex couples should be granted the right to marry under existing laws like the Special Marriage Act, 1954. Petitioners argued that denying marriage rights to LGBTQ+ couples violated their fundamental rights under Articles 14, 15, and 21 of the Constitution.
While the Court unanimously recognized the right of same-sex couples to cohabit and form relationships, the majority judgment refused to legalize same-sex marriage, stating that making such laws is the role of Parliament, not the judiciary.
The Court also declined to read same-sex unions into the Special Marriage Act. However, it urged the government to create a committee to examine civil rights (like inheritance, insurance, and pensions) for queer couples.
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Navtej Singh Johar v. Union of India (2018) – Case Law Summary
In the landmark case Navtej Singh Johar v. Union of India (2018), a five-judge Constitution Bench of the Supreme Court of India unanimously struck down Section 377 of the Indian Penal Code to the extent that it criminalized consensual sexual relations between adults of the same sex.
The petitioners, including dancer Navtej Singh Johar, challenged Section 377 as violating their fundamental rights under Articles 14 (equality), 15 (non-discrimination), 19 (freedom), and 21 (right to life and dignity).
The Court held that:
Sexual orientation is a natural and immutable part of identity. Section 377 was unconstitutional as it infringed on privacy, dignity, and autonomy. The judgment emphasized constitutional morality over social morality. This decision decriminalized homosexuality in India and was hailed as a historic victory for LGBTQ+ rights, laying the foundation for future demands like same-sex marriage.
CONCLUSION
The battle to have same-sex marriage in India has transformed from being suppressed and punished to legally accepted and receiving wider publicity. Though being gay is no longer an offence, equal rights to get married are yet to happen.
The legal journey shows the conflict between old ways and new ways, law and society, and the courts and lawmakers. The hope is that as activism grows, public support increases, and global influence rises, India will one day see marriage equality as a basic human right.
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