Context

Recently, the Supreme Court referred a batch of petitions seeking the legal recognition of same-sex marriages to a Constitution Bench.
The Union government has opposed the petitions. Law Minister Kiren said that marriage is a matter of policy to be decided by Parliament and the executive alone.
In this context, this edition of the Burning Issue will explain this issue and the arguments around it.

What is the issue?

The Supreme Court had issued notice to the Centre Govt on a plea by two gay couples seeking recognition of same-sex marriage under the Special Marriage Act, 1954 in November 2022, asking for its stand on same-sex marriage.
In response to this notice, the Union Government has recently filed an affidavit clarifying its stance on same-sex marriages.

What is meant by Same-sex marriage?

Same-sex marriage is the legal recognition of a marriage between two individuals of the same sex.
It grants same-sex couples the same legal and social recognition, rights, and privileges that are traditionally associated with marriage, including property rights, inheritance rights, and the ability to make decisions for each other in medical emergencies.
The recognition of same-sex marriage varies around the world, with some countries legalizing it while others do not.
The issue has been the subject of much debate and controversy, with arguments for and against same-sex marriage based on religious, cultural, social, and legal considerations.

Same-sex marriage in India

Same-sex marriage is currently not legally recognized in India.
Section 377 of the Indian Penal Code, which criminalized homosexuality, was struck down by the Supreme Court of India in 2018, which was a landmark decision for LGBTQ+ rights in the country.
However, there is still no law that allows same-sex couples to legally marry or have any legal recognition of their relationships.

What is the Judicial basis for same-sex marriage?

Decriminalization of IPC section 377 in the Navtej Singh Johar & Ors. V. Union of India(2018)

In this landmark verdict, the Supreme Court today scrapped the controversial Section 377– a 158-year-old colonial law on consensual gay sex.
Section 377, which is part of an IPC 1861, banned “carnal intercourse against the order of nature with any man, woman or animal” — which was interpreted to refer to homosexual sex.
The Supreme Court reversed its own decision and said Section 377 is irrational and arbitrary.
The judgment was delivered by a Bench of Chief Justice of India Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.

What does the Government affidavit say?

The main points of the Government affidavit are:

Heterosexual marriage has been the norm throughout history and is “foundational to both the existence and continuance of the state.”
Marriage in India is regarded as a “holy union,” a “sacrament,” and a “sanskar,” and is dependent on customs, rituals, practices, cultural ethos, and societal values.
Any “deviation” from the “statutorily, religiously and socially” accepted norm in “human relationships” can only happen through the legislature and not the Supreme Court.
In its affidavit to the Supreme Court, the government argued that the traditional concept of marriage, consisting of a biological man, woman and child, cannot be disrupted.
It claimed that recognizing same-sex marriages could cause havoc in the system of personal laws.
As different from many liberal democracies, in India, aspects of marriage, succession and adoption are governed by religious personal laws.

Reasons behind the center’s opposition

Legal revamp required: The registration of marriage of same-sex persons also results in a violation of existing personal as well as codified law provisions — such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under the personal laws governing the individuals”.
Definition of spouse: In a same-sex marriage, it is neither possible nor feasible to term one as ‘husband’ and the other as ‘wife’ in the context of the legislative scheme of various personal laws.
Against cultural norms: The social order in our Country is a religion based which views procreation as an obligation for the execution of various religious ceremonies.
Property and other civil rights: Property rights post-marriage is a much-contested issue in India. Same-sex marriage will not create any immunity for the law but increase complex interpretations.
Navtej case did not mention marriages: The 2018 Navtej Singh Johar judgment decriminalized homosexuality, but it did not mention/legitimize same-sex marriage.
Not comparable to the heterosexual couple: Same-sex marriage cannot be compared to a man and woman living as a family with children born out of the union.
Violation of existing personal laws: Registration of same-sex marriage would result in a violation of existing personal as well as codified law provisions.
In the interest of society: There is a “compelling interest” for society and the state to limit recognition to heterosexual marriages only.

What stand do petitioners have?

Same-sex marriage as a matter of rights

Any social policy is liable to judicial interference if rights are violated.
The petitioners rely on the rights to equality and non-discrimination as laid out in Articles 14 and 15.
The Constitution prohibits the state from discriminating based on sex.
Sex has been interpreted by the Supreme Court in Navtej Singh Johar (2018) to include sexual orientation. Granting the right to marry heterosexual couples and not to homosexual couples discriminates on the basis of their sexual orientation.

Same-sex marriage is a matter of privacy

Right to privacy: Supreme Court recognized this right to be part of the right to life and liberty under Article 21 of the Constitution in the celebrated Puttaswamy (2017) verdict.
What the court said on privacy: Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.
The state currently denies this right: The right to privacy entails the right of the citizens to make decisions about their family life and marriage. The state currently denies same-sex couples this right.
The Special Marriage Act: The Special Marriage Act is a secular law that works alongside religious personal laws. Same-sex marriages can be recognized under the Special Marriage Act. The Act already speaks of marriages between any two persons which are solemnized under it. Any two persons can include two persons of the same sex.

Special Marriage Act

The Special Marriage Act is a law in India that allows individuals of different religions or nationalities to marry each other.
It was enacted in 1954 and came into effect in 1955.
The Special Marriage Act allows for inter-caste and inter-religious marriages, and couples who register under this act are not required to change their religion or follow any religious rites or rituals. However, the act does not recognise same-sex marriages.
The act also provides for divorce on certain grounds and maintenance to the spouse and children.

Issues with such marriages

Morality: This has brought with it a change in social attitudes so that the stigma attached to homosexuality has to a greater extent disappeared.
Rising activism: Campaigns for lesbian and gay rights have taken on an increasingly radical character, arguing for an end to all forms of discrimination against homosexuality.
Religious sanctions: Same-sex acts are punishable by death in Arab countries. No religion openly embraces same-sex marriage. More or less, they are considered unnatural everywhere.
Social stigma: Apart from the harsh legal scenario, homosexuals face social stigma as well. Same-sex marriages are still unimaginable as any instance of sexual relations between a couple of the same sex draws hatred and disgust.
Patriarchy: It must not be forgotten that Indian society is patriarchal in nature and the fact that certain women and men have different choices, which is not sanctioned by the ‘order’, frightens them in a way.
Burden of collectivity: Our society is very community oriented and individualism is not encouraged in the least, any expression of homosexuality is seen as an attempt to renounce tradition and promote individualism.

Arguments in favor of such marriages

Pursuit of happiness: Homosexuality is not an offense, it is just a way of the pursuit of happiness, a way to achieve sexual happiness or desire.
Right to privacy: The fundamental right to liberty (under Article-21) prohibits the state from interfering with the private personal activities of the individual.
Arbitrariness: Infringement of, the right to equal protection before the law requires the determination of whether there is a rational and objective basis to the classification introduced.
Issues with the definition: Section-377 assumes that a natural sexual act is that which is performed for procreation. Hence, it thereby labels all forms of the non-procreative sexual act as unnatural.
Discrimination: Section-377 discriminates based on sexual orientation which is forbidden under Article-15 of the Constitution. Article-15 prohibits discrimination on several grounds, which includes Sex.
Human rights: The universal law of Human Rights states that social norms, tradition, custom or culture cannot be used to curb a person from asserting his fundamental and constitutional rights.
Many countries recognizing: According to global think tank Council of Foreign Relations, same-sex marriages are legal in at least 30 countries, including the United States, Australia, Canada and France.

Parallels in west

In Obergefell v Hodges (2015), the Supreme Court of the United States held that same-sex couples have a constitutional right to marriage.
Thirty-one out of the 50 states in the United States have marriage laws that define marriage as between a man and a woman.
In May 1996, South Africa became the first country to constitutionally prohibit discrimination based on sexual orientation.
The United Kingdom passed the “Alan Turing law” in 2017 which ‘granted amnesty and pardon to the men who were cautioned or convicted under historical legislation that outlawed homosexual acts’.

Way forward

Dissociating from religion: Such marriages are forbidden in almost every religion. Hence no single religion should be considered a hindrance in creating a legal sanction.
Doing away with discrimination: The same-sex community needs an anti-discrimination law that empowers them to build productive lives and relationships irrespective of gender identity.
Letting the society evolve: Society has to imbibe the doctrine of progressive realization of rights and it cannot be forcibly convinced by law.
Creating awareness: Certainly, this is not an overnight phenomenon. We are a society where the practice of Sati and Nikah halala was considered a religious order.
Widen the scope of article 15 to include gender too: Article 15 secures the citizens from every sort of discrimination by the state, on the grounds of religion, race, caste, sex or place of birth or any of them. The grounds of non-discrimination should be expanded by including gender and sexual orientation.
Sensitise the general public and officials: Justice Rohinton F. Nariman had directed in Navtej Singh Johar & Ors., the Government to sensitize the general public and officials, to reduce and finally eliminate the stigma associated with the LGBTQ+ community through the mass media and the official channels.
Sensitise students: School and university students too should be sensitized about the diversity of sexuality to deconstruct the myth of heteronormativity. Heteronormativity is the root cause of hetero-sexism and homophobia.

Conclusion

The debate on the legal recognition of same-sex marriages in India continues to be a contentious issue, with the government and petitioners presenting opposing views.
However, given the complex social, cultural, and legal considerations, any decision regarding same-sex marriage should be carefully evaluated to ensure that it is inclusive and respects individual rights.
Ultimately, it is important to arrive at a balanced and just solution that upholds the principles of equality and non-discrimination for all individuals, regardless of their sexual orientation.

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