This Article is written by Soumyajit Das, first year, B.A.LL.B, South Calcutta Law College, Kolkata during his internship at LeDroit India.
Keywords
Same-sex marriage, India Supreme Court, LGBTQ+ rights, Marriage equality, Special Marriage Act
Abstract
This study examines the evolving discourse around same-sex marriage in India, emphasizing the Supreme Court’s landmark 2023 judgment and its continuing implications in 2024. The judgment acknowledged the legitimacy of same-sex relationships but deferred the recognition of such marriages to legislative action, underscoring the doctrine of separation of powers. The analysis explores key judicial milestones, such as the Navtej Singh Johar case, which decriminalized homosexuality, and examines legislative challenges, including societal resistance and political inertia. Furthermore, it highlights the growing role of public advocacy and the evolving societal debates around marriage equality. This study underscores the urgent need for comprehensive reforms to bridge gaps in LGBTQ+ rights, ensuring equality, dignity, and legal protections for all individuals.
Introduction
The Supreme Court of India’s stance on same-sex marriage reflects a pivotal moment in the evolving recognition of LGBTQ+ rights. Despite the decriminalization of homosexuality in the Navtej Singh Johar judgment (2018) and progressive rulings acknowledging diverse family structures, the Court’s 2023 decision denied legal recognition to same-sex marriages, citing the need for legislative action. This decision underscores a delicate balance between upholding constitutional values like equality and dignity and addressing societal norms steeped in traditional concepts of marriage. As India navigates this discourse, the debate highlights the growing tension between judicial advancements and the legislature’s hesitance to enact reforms.
Background: LGBTQ+ Rights in India
The journey toward recognition of LGBTQ+ rights in India has been long and complex, marked by both progressive and regressive rulings. For years, homosexuality was criminalized under Section 377 of the Indian Penal Code (IPC), a colonial-era law that penalized “carnal intercourse against the order of nature.” This provision served as a major impediment to the recognition of LGBTQ+ rights, fostering widespread discrimination and marginalization.
A watershed moment came in Navtej Singh Johar v. Union of India (2018), when the Supreme Court decriminalized consensual same-sex relationships by partially striking down Section 377. The judgment, authored by a bench led by then Chief Justice Dipak Misra, was celebrated as a victory for constitutional morality, equality, and individual dignity. The Court emphasized the importance of the right to privacy, autonomy, and non-discrimination, setting the stage for further conversations around LGBTQ+ rights, including same-sex marriage.
The Case for Same-Sex Marriage
In recent years, LGBTQ+ activists and petitioners have increasingly called for the recognition of same-sex marriage in India, arguing that the right to marry is an essential aspect of personal liberty, equality, and
recognition of same-sex marriage, LGBTQ+ individuals face systemic discrimination in matters such as inheritance, adoption, surrogacy, taxation, and spousal rights. The lack of legal recognition also reinforces societal stigma, depriving same-sex couples of the legal and social legitimacy afforded to heterosexual marriages.
Judicial Developments on Same-Sex Marriage
The Supreme Court of India has not yet issued a definitive ruling legalizing same-sex marriage. However, several cases and observations by the judiciary have framed the debate and illuminated its trajectory.
Navtej Singh Johar v. Union of India (2018)
While the *Navtej Singh Johar* judgment primarily dealt with decriminalizing same-sex relationships, the ruling’s language hinted at a broader embrace of LGBTQ+ rights. The Court, in its judgment, stressed that equality under Article 14 of the Constitution is not limited by sexual orientation. Justice D.Y. Chandrachud, in his concurring opinion, underscored the importance of recognizing LGBTQ+ individuals’ right to love, form relationships, and live with dignity. This ruling served as a foundation for the ongoing fight for marriage equality.
Shafin Jahan v. Asokan K.M. (2018)
In this case, the Supreme Court reaffirmed the right to marry as a fundamental aspect of individual autonomy. Although it involved an interfaith heterosexual couple, the ruling highlighted that the freedom to choose one’s partner is intrinsic to personal liberty and is protected under Article 21 of the Constitution. Activists have argued that this principle should extend to same-sex couples as well.
Same-Sex Marriage Petitions in 2023
In 2023, the Supreme Court heard multiple petitions seeking legal recognition of same-sex marriages. The petitioners argued that denying marriage rights to same-sex couples violates Articles 14 (equality before the law), 15 (prohibition of discrimination), and 21 (protection of life and personal liberty) of the Indian Constitution. They also pointed to the Special Marriage Act, 1954, which provides for civil marriages irrespective of religion, arguing that it should apply to same-sex couples.
During the hearings, the bench, led by Chief Justice D.Y. Chandrachud, engaged extensively with the petitioners and the government. The Court acknowledged the need to ensure that LGBTQ+ individuals are not treated as second-class citizens but also expressed concern over the judiciary’s role in making broad social policy decisions. The government opposed the petitions, arguing that marriage is a union traditionally defined as being between a man and a woman and that any changes to this definition should be made by Parliament, not the judiciary.
In October 2023, Supreme Court delivered its judgment. While it refrained from granting legal recognition to same-sex marriages, the Court recognized the importance of LGBTQ+ relationships and directed the government to form a committee to address the legal challenges faced by same-sex couples, such as inheritance, adoption, and property rights. This ruling underscored the Court’s acknowledgment of the issue while leaving the question of marriage equality to the legislative domain.
The Role of Judiciary and Parliament in LGBTQ+ Rights:
Bridging the Gaps
The debate over same-sex marriage in India underscores a critical interaction between the judiciary and legislature in addressing emerging social challenges. The judiciary has historically played a transformative role in advancing LGBTQ+ rights, as seen in judgments like Navtej Singh Johar v. Union of India (2018), which decriminalized homosexuality, and Deepika Singh v. Central Administrative Tribunal (2022), recognizing diverse family structures. However, when it comes to same-sex marriage, the Supreme Court’s 2023 verdict demonstrated restraint, leaving the task to Parliament to legislate on this complex and sensitive issue.
This approach highlights a fundamental limitation: while the judiciary can interpret the Constitution to expand rights, legislative reform is often required to implement comprehensive frameworks. The government, in response to judicial nudges, established a committee in 2023 to explore extending legal entitlements such as adoption, inheritance, and tax benefits to same-sex couples. By 2024, discussions within this framework were ongoing, with stakeholders from various sectors debating the scope and impact of such reforms.
The challenge lies in balancing constitutional values of equality and liberty with cultural and societal norms that influence legislative decisions. Critics argue that piecemeal measures, like administrative recognition of certain rights, fail to address the core issue of marital equality, leaving LGBTQ+ couples in a legally precarious position. For instance, the absence of a formal union deprives same-sex partners of spousal benefits such as health insurance, joint property ownership, and next-of-kin privileges in emergencies.
Comparatively, countries like the United States and South Africa have set precedents by ensuring marriage equality through judicial decisions or legislative reforms. These examples are frequently cited by Indian activists advocating for comprehensive changes. The road ahead requires a collaborative effort between Parliament, the judiciary, and civil society to bridge the legal and social gaps hindering marriage equality.
Challenges and Counterarguments
Cultural and Social Opposition
A significant challenge to the recognition of same-sex marriage in India lies in societal and cultural attitudes. Opponents argue that marriage is deeply rooted in traditional values and religious practices, which predominantly define it as a heterosexual institution. Critics fear that recognizing same-sex marriages could disrupt the social fabric.
Government’s Stance
The central government has consistently opposed the recognition of same-sex marriage, citing concerns over the potential societal impact and asserting that marriage laws are designed to reflect societal norms. It has argued that any significant redefinition of marriage should emerge from legislative debate rather than judicial intervention.
Judicial Overreach Debate
The Supreme Court has historically played a proactive role in expanding civil liberties, as seen in cases like Kesavananda Bharati and Maneka Gandhi. However, its reluctance to legalize same-sex marriage reflects concerns about judicial overreach and respect for democratic processes.
The Way Forward
The Supreme Court’s rulings have laid the groundwork for broader acceptance of LGBTQ+ rights in India, but full marriage equality remains elusive. Activists argue that the right to marry is essential for achieving full equality and eliminating the systemic disadvantages faced by same-sex couples. However, achieving this goal will likely require a combination of judicial advocacy, legislative action, and societal change.
Role of the Judiciary
The judiciary can continue to advance LGBTQ+ rights by addressing specific legal gaps faced by same-sex couples, such as inheritance and adoption rights. By framing these issues as violations of constitutional principles, the Court can incrementally pave the way for broader societal acceptance of same-sex marriage.
Legislative Action
Ultimately, the recognition of same-sex marriage may depend on legislative action. Lawmakers must engage with the issue, taking into account evolving societal attitudes and international developments. Globally, several countries, including the United States, Canada, and many in Europe and Latin America, have legalized same-sex marriage, demonstrating its feasibility and positive social impact.
Public Awareness and Advocacy
Public acceptance is crucial for lasting change. Advocacy groups, NGOs, and media play a vital role in fostering awareness, challenging stereotypes, and building societal support for same-sex marriage. Efforts to promote inclusivity and diversity in education, workplaces, and public discourse are equally important.
Conclusion
The Supreme Court of India’s cautious yet progressive approach to LGBTQ+ rights has been instrumental in fostering a more inclusive legal landscape. While the Court has recognized the dignity and rights of LGBTQ+ individuals, its reluctance to legalize same-sex marriage reflects the complexities of balancing constitutional principles with societal norms. The recognition of same-sex marriage remains a critical goal for achieving true equality, but it requires sustained advocacy, judicial engagement, and legislative action. By continuing to champion the principles of liberty, equality, and dignity, India can take meaningful steps toward becoming a more inclusive society for all its citizens.
References
- Supreme Court Verdict on Same-Sex Marriage – SCC Online
- India’s Supreme Court on Same-Sex Marriage – The Hindu
- The Rights of LGBTQ+ Couples in India – Hindustan Times
- Navtej Singh Johar Judgment – Supreme Court of India Archives
- Global Perspectives on Same-Sex Marriage – BBC News
