After repealing section 377, its time to Legalise Same-Sex Marriage in India

A draconian, archaic law that criminalized homosexuality was struck down in a historic judgment given by the Supreme Court in 2018. Two years after the judgment, the LGBTQ (lesbian, gay, bisexual, transgender, and queer) community has now sought legal recognition of their relationships.

As the social stigmas surrounding the LGBTQ community continue to exist in Indian society, the legal standing of same-sex marriage will give certain rights and privileges such as succession, maintenance, and pension to homosexual couples which will ease down the struggle they face in society.

Since homosexual couples are deprived of every legal right that heterosexual marriages are entitled to, they have pinned their hopes on the Judiciary to legalise same-sex marriage in India and provide parity with heterosexual marriages.

Petitions filed for Same-sex Marriage

Recently, two couples filed a petition in the Delhi High Court seeking to legalise same-sex marriage as the state’s refusal to recognise their marriages violates their constitutional rights.

One such petition was filed before the Delhi High Court by two mental health professionals – Kavita Arora, 47 and Ankita Khanna, 36, who said they had been living together as a couple for eight years but could not get the legal recognition of their relationship merely because both are women.

The second petition was filed by two men – Vaibhav Jain, an Indian citizen, and Parag Mehta, an overseas citizen of India, who got married in the United States in 2017. But they could not register their marriage in India as it was refused by an Indian consulate under the Foreign Marriage Act, 1969.

Petitioners – Kavita Arora and Ankita Khanna, Vaibhav Jain and Parag Mehta talk about the problems faced by them due to non-legalisation of Same-sex Marriage in India. Credits: NDTV

A similar petition was filed by a gay couple before the Kerala High Court in January 2020 challenging the validity of section 4 and schedule 2 to 4 of the Special Marriage Act, 1954 on the ground that it restricts marriage only to a man and woman, and is, therefore, a violation of Articles 14, 15, 19 and 21 of the Constitution of India.

During the hearing of these petitions before the Delhi High Court, the Solicitor General of India – Tushar Mehta commented that ‘Our law, our legal system, our society, our values do not recognise same-sex marriages’.

One of the counsels for the Centre, Rajkumar Yadav, has argued that this is a peculiar circumstance and this situation has not been faced in 5,000 years of Sanatan Dharma.

The divisional bench comprising of Justice Rajiv Sahai Endlaw and Justice Asha Menon discarded this argument of the Centre. “We may shed our inhibition. The laws are gender-neutral. Please try to interpret the law for the citizens of Sanatan Dharma in the country. This is not adversarial litigation. This is for the right of every citizen of the country,” said Justice Menon.

However, the matter has been sought for a detailed reply by the Centre and posted for further hearing on January 8, 2021.

Click on the tweet to read the whole thread. Senior Advocate Menaka Guruswamy argued on behalf of the petitioners.

Navtej Singh Johar vs. the Union of India – Decriminalisation of Section 377

The Supreme Court overruled its decision of Suresh Kumar Koushal in Navtej Singh Johar vs. the Union of India and decriminalized section 377 of the Indian Penal Code, 1860. This decision has liberalized the LGBTQ community from the criminalization of sexual intercourse on the basis of their sex. Much as it was supposed to do, the Supreme Court upheld the fundamental rights of the LGBTQ community and gave them an equal footing in society.

The judgment reiterated rulings from the Nalsa case where Justice Radhakrishnan opined that gender identity is one of the most fundamental aspects of life which refers to a person‘s intrinsic sense of being a male, female or transgender, or transsexual person. Thus, the Supreme Court took a progressive and liberalized view in explaining the dynamics of gender identity and fluidity of sexual orientation.

J. Radhakrishnan explained that the Constitution of India being the supreme law of the land is a progressive and inclusive constitution that upheld the rights of all the citizens of India.

The discrimination on the ground of sex under Articles 15 and 16, therefore, includes discrimination on the ground of gender identity. The expression sex used in Articles 15 and 16 is not just limited to the biological sex of male or female, but intended to include people who consider themselves to be neither male nor female.”

The Navtej Singh Johar bench not only emphasized the social, legal, economical discrimination faced by the LGBTQ community but also took into account the perspective of human dignity while deciding the matter.

It gave sheer importance to article 21 of the Indian Constitution which guaranteed the right to life and personal liberty of an individual. Recapitulating the eminence of article 21, the bench relied heavily upon the Puttaswamy judgment and explained that protection of both sexual orientation and right to privacy of an individual is extremely important, for, without the enjoyment of these basic and fundamental rights, individual identity may lose significance, a sense of trepidation may take over and their existence would be reduced to mere survival.

The bench also ruled out the contention held in the Suresh Kumar Koushal case and laid down that simply because the LGBTQ community is in a minority of 1.3 billion Indians their rights cannot be encroached upon. The forefathers of the Constitution ensured that no citizen of this country is discriminated against on the basis of their sex. 

Sikri, J., in his concurring opinion, dwelling upon the rights of transgenders, laid down that

Gender identity is an essential component that is required for enjoying civil rights by the community. It is only with this recognition that many rights attached to the sexual recognition as ―the third gender would be available to the said community more meaningfully viz. the right to vote, the right to own property, the right to marry, the right to claim a formal identity through a passport and a ration card, a driver‘s license, the right to education, employment, health and so on.

The bench further made a comparative study of the progression of gender identity and same-sex marriages in different democracies of the world. Nevertheless, the judgment fails to make room for same-sex marriages in India and thus lacks a progressive and liberal approach for the LGBTQ community which has long been ostracized in Indian society.

Marriage Laws in India

Personal Marriage Laws

Marriage has a great significance in India culturally, socially, and religiously. The main idea of marriage was considered a tool for procreation. However, as time changes, the concept of marriage has gained a lot of momentum. The understanding of marriage has transformed from being a sacred religious institution to a legal contract, from a patriarchal institution to a more equitable partnership built on freedom and equality.

Personal laws in India regulate the ceremonies and integrity of marriage of different religions. Hindus, Christians, Muslims, and Parsis have their own personal laws which govern the marriage in that particular religion. The Hindu Marriage Act 1955 applies to Jains, Buddhists, and Sikhs too.

It is pertinent to note that same-sex marriage is not illegal in India, that is, it does not constitute a criminal offense under the Indian Penal Code 1860. However, same-sex marriages cannot be registered under the given marriage laws in India which have a taint of heteronormativity. 

The Hindu Marriage Act 1955 can be regarded as slightly neutral in its understanding as there is no mention of the words ‘male’ or ‘female’. The act instead mentions the words ‘bride’ and ‘groom’. Hence it is possible to make arguments that same-sex couples may use these terms as being gender-neutral. This approach has been determined previously by lesbian couples but the general interpretation may promote gender stereotypes.

Another approach could be amending the act altogether and making it inclusive of same-sex marriages. But considering that the majority of Indians are homophobic, this can gain backlash and hurdles while passing the amendment.

Ruth Vanita, the author of Love’s Rite, has suggested a different approach – to provide recognition to the LGBTQ community’s marriages a community should be formed that follows its own rituals and customs. For this, she gave examples of communities like Arya Samaj and Anti-Bhramin that follow their own set of rituals and practices by amending section 7 of the Special Marriage Act 1954.

However, these approaches require a major alteration and may not seem feasible. Unless the personal laws are amended and made inclusive of same-sex marriages parallel to the amendments in the Special Marriage Act of 1954.

Special Marriage Act of 1954

The Special Marriage Act 1954 is secular marriage legislation that allows marriage between any male of at least 21 years and female of at least 18 years irrespective of their religion. The main aim of this Act is to legalise marriages of people belonging to different religions or marriages that do not want to be bound by personal laws.

The Statement of Objects and Reasons reads as “a special form of marriage which can be taken advantage of by any person in India and all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess.” Thus, the Act is not restricted only to citizens of India but is applicable to persons from all walks of life whether Indian or Foreign, atheist or agnostic, gay or straight, bisexual or bi-curious, homophobic or homogenous.

To sanction same-sex marriages in India, section 4(c) of the Special Marriage Act needs to be amended. Thus any amendments in the personal marriage laws will require amendments in this Act. Moreover, homosexual couples have argued that the word ‘marriage’ has not been defined under the Special Marriage Act 1954, which renders marriages under the Act as gender-neutral.

The Legalisation of Same-Sex Marriages – A Comparative Study

Recently, the Taiwan government allowed two Taiwanese soldiers and their civilian same-sex partners to tie the knot at a mass wedding hosted by the military in October 2020. This marks another victory for gay rights in Asia. Taiwan is the only country in Asia that legalised same-sex marriage thus inspiring its Asian counterpart countries to open doors for the LGBTQ community.

The legal status of same-sex marriage has changed in contemporary countries around the world. From the United States of America to Australia, from Brazil to South Africa, around 28 countries in the world have legalised same-sex marriage. The latest country to allow same-sex marriage is Costa Rica.

Image is subject to copyrights. Credits: Statista

The Judiciary in various democracies has played a major role in granting rights to the LGBTQ community and has opined judgments in the favour of same-sex marriage.

The European Court of Human Rights gave a pioneering judgment in 2015 in Oliari v Italy (“Oliari”). The Applicants before the ECtHR argued that the absence of legislation in Italy permitting same-sex marriage or any other type of civil union constituted discrimination on the basis of sexual orientation, in violation of Articles 8, 12, and 14 of the European Convention on Human Rights. In line with its previous case law, the Court affirmed that same-sex couples “are in need of legal recognition and protection of their relationship.” The ECtHR concluded that gay couples are equally capable of entering into stable and committed relationships in the same way as heterosexual couples.

The oldest democracy of the world, the United States of America, has also recognised and legalised same-sex marriage. Commenting on the right to marriage, Justice Kennedy of the U.S. Supreme Court in Obergefell v Hodges said that:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family… It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfilment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

It is unfortunate that the world’s largest democracy has failed to uphold the rights of its LGBTQ community which has been consistently oppressed and marginalized from all spheres of life. 

The judgment given out in Navtej Singh Johar has paved the way for the rights of the LGBTQ community and thus puts an onus on the Judiciary to once again protect the rights and liberties of the LGBTQ community and see them as nothing but equals. 

Article 21 of the Indian Constitution is the very core of an individual’s right. When such a right is violated it repudiates the other fundamental rights of the citizen. Refusal to recognise same-sex marriage infringes this right of an individual. Thus, no person shall be deprived of his life or personal liberty irrespective of their sex. Justice Krishna Iyer in Maneka Gandhi v. Union of India set out the importance of article 21 of the Constitution and observed that

“Life is a terrestrial opportunity for unfolding personality and when any aspect of Article 21 is viewed in a truncated manner, several other freedoms fade out automatically. It has to be borne in mind that dignity of all is a sacrosanct human right and sans dignity, human life loses its substantial meaning.”

Vivek and Vishwa, who got married on 1 February 2017, talk about how their marriage is like everyone else’s, but also really isn’t. Credits: The Quint

About the Author

Aashi Shah
Zealous law student, currently in the third year. Aiming to spread awareness about the law in the most simplified manner.

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