Author- Tejashwini Verma, Patna Law College
Abstract
Same-sex marriage remains one of the most contentious and debated issues in contemporary Indian society. Despite the decriminalization of homosexuality in 2018, the legal recognition of same-sex marriages is still pending. This article explores the evolving legal landscape concerning same-sex marriage in India, examining the constitutional arguments, societal implications, and the judiciary’s role in advancing LGBTQ+ rights. Through a detailed analysis of case laws and legislative efforts, the article underscores the need for legal recognition of same-sex marriages as a fundamental right, reflecting the principles of equality and non-discrimination enshrined in the Indian Constitution.
To the Point
The legal battle for the recognition of same-sex marriage in India is far from over. While the landmark judgment in Navtej Singh Johar v. Union of India (2018) decriminalized homosexuality, it did not address the issue of same-sex marriage. The absence of legal recognition denies same-sex couples the rights and privileges enjoyed by heterosexual couples, such as inheritance, adoption, and spousal benefits. This article examines the legal and constitutional arguments for and against same-sex marriage, the role of the judiciary in shaping LGBTQ+ rights, and the ongoing efforts to achieve marriage equality in India.
The Proof
The argument for the legalization of same-sex marriage in India is built on the following key points:
Constitutional Guarantees: The Indian Constitution guarantees fundamental rights to all citizens, including the right to equality (Article 14), the right to freedom of expression (Article 19), and the right to life and personal liberty (Article 21). Denying same-sex couples the right to marry is a violation of these constitutional principles.
Judicial Precedents: The Supreme Court’s judgment in Navtej Singh Johar v. Union of India (2018) affirmed the constitutional rights of LGBTQ+ individuals, including their right to privacy, dignity, and equality. Legal recognition of same-sex marriages would be a logical extension of this judgment.
International Trends: Many countries worldwide, including the United States, Canada, and several European nations, have legalized same-sex marriage, recognizing it as a fundamental right. As a signatory to various international human rights conventions, India must align its laws with global human rights standards.
Social Justice and Equality: Legal recognition of same-sex marriages is essential for ensuring social justice and equality for LGBTQ+ individuals. It would provide them with legal protection and equal access to rights and benefits, thereby promoting their dignity and well-being.
Analysis of the Legal Landscape
The legal recognition of same-sex marriage in India has been a topic of intense debate, with arguments revolving around constitutional principles, societal norms, and religious beliefs. The current legal framework does not explicitly recognize same-sex marriages, leaving LGBTQ+ couples without legal protection and the rights enjoyed by heterosexual couples.
Constitutional Arguments:
Right to Equality (Article 14): Article 14 guarantees equality before the law and equal protection of the laws to all individuals. Denying same-sex couples the right to marry constitutes discrimination based on sexual orientation, violating the principle of equality.
Right to Life and Personal Liberty (Article 21): The right to life under Article 21 includes the right to live with dignity, which encompasses the right to form a family. The denial of marriage rights to same-sex couples infringes upon their right to personal liberty and dignity.
Freedom of Expression (Article 19): Marriage is a form of expression and identity. Denying same-sex couples the right to marry restricts their freedom of expression and the ability to express their love and commitment publicly.
Judicial Role and Precedents:
Navtej Singh Johar v. Union of India (2018): This landmark judgment decriminalized consensual same-sex relations, recognizing the right of LGBTQ+ individuals to live with dignity and equality. However, the judgment did not extend to the recognition of same-sex marriages, leaving the issue unresolved.
Shafin Jahan v. Asokan K.M. (2018): The Supreme Court reaffirmed the right of individuals to marry a person of their choice as a fundamental right under Article 21. While the case involved a heterosexual couple, the principles laid down can be extended to same-sex couples.
Puttaswamy v. Union of India (2017): The right to privacy was recognized as a fundamental right under Article 21. This includes the right to make personal choices, such as the choice of a partner, which should logically extend to same-sex couples.
Legislative Efforts:
Despite the progressive judgments by the judiciary, there has been little legislative movement towards recognizing same-sex marriage in India. Various petitions have been filed in courts seeking legal recognition of same-sex marriages, but the legislative framework remains silent on the issue.
Special Marriage Act, 1954: This act provides for a secular and civil marriage outside of religious laws. Amending this act to include same-sex marriages would be a significant step toward marriage equality.
Societal and Religious Opposition:
The opposition to same-sex marriage often stems from societal norms and religious beliefs that view marriage as a union exclusively between a man and a woman. Critics argue that recognizing same-sex marriages would undermine traditional family values and religious principles.
However, legal scholars argue that personal laws and religious beliefs should not dictate constitutional rights. The principle of secularism enshrined in the Constitution requires that laws be neutral and not favor any particular religion.
Case Laws
Several landmark judgments and ongoing legal battles have shaped the discourse on same-sex marriage in India:
Navtej Singh Johar v. Union of India (2018): The Supreme Court struck down Section 377 of the Indian Penal Code, decriminalizing consensual homosexual acts. The judgment emphasized the constitutional rights of LGBTQ+ individuals, setting the stage for the demand for marriage equality.
Shafin Jahan v. Asokan K.M. (2018): In this case, the Supreme Court upheld the right of adults to marry a person of their choice, stating that the right to choose a partner is integral to the right to life and personal liberty under Article 21. This principle can be extended to same-sex couples seeking legal recognition of their marriages.
Deepika Singh v. Central Administrative Tribunal (2022): The Supreme Court recognized the concept of family beyond traditional heterosexual norms, stating that families can take various forms and should be entitled to legal recognition and protection. This judgment is seen as a significant step towards recognizing diverse family structures, including same-sex marriages.
Sushma v. Commissioner of Police (2021): The Madras High Court, while dealing with a case of harassment faced by a lesbian couple, directed the state to take measures to sensitize the police and society about the rights of LGBTQ+ individuals. The court also expressed the need for legal recognition of same-sex marriages.
K.S. Puttaswamy v. Union of India (2017): The Supreme Court’s recognition of the right to privacy as a fundamental right under Article 21 included the right to make personal decisions, such as choosing a partner. This judgment strengthens the argument for recognizing same-sex marriages as part of the right to personal liberty.
Conclusion
The legal recognition of same-sex marriage in India is a crucial step towards ensuring equality and non-discrimination for LGBTQ+ individuals. While the decriminalization of homosexuality was a significant milestone, the fight for marriage equality continues. The constitutional principles of equality, personal liberty, and dignity demand that same-sex couples be granted the same rights and legal recognition as heterosexual couples.
The judiciary has played a pivotal role in advancing LGBTQ+ rights in India, but the onus now lies on the legislature to enact laws that reflect these principles. Legal recognition of same-sex marriage would not only affirm the rights of LGBTQ+ individuals but also signal India’s commitment to upholding human rights and equality for all its citizens.
FAQS
Is same-sex marriage legal in India?
As of now, same-sex marriage is not legally recognized in India. However, there have been ongoing legal efforts and petitions seeking recognition of same-sex marriages.
What rights do same-sex couples have in India?
Same-sex couples in India have the right to engage in consensual sexual relationships following the decriminalization of homosexuality in 2018. However, they do not have legal recognition of their relationships in terms of marriage, inheritance, adoption, or spousal benefits.
Can same-sex couples adopt children in India?
The adoption laws in India do not currently allow same-sex couples to adopt children jointly. However, single LGBTQ+ individuals can adopt, although this is subject to various legal and societal challenges.
What is the significance of the Navtej Singh Johar case?
The Navtej Singh Johar case was a landmark judgment in which the Supreme Court of India decriminalized homosexuality, affirming the constitutional rights of LGBTQ+ individuals, including their right to privacy, dignity, and equality.
What legal challenges do same-sex couples face in India?
Same-sex couples in India face legal challenges related to the lack of recognition of their relationships. This includes the inability to marry, adopt children, or inherit property as a couple, as well as difficulties in accessing spousal benefits such as health insurance and pensions.
What steps can be taken to legalize same-sex marriage in India?
Legalizing same-sex marriage in India would require either a judicial pronouncement from the Supreme Court recognizing such marriages or legislative amendments to existing marriage laws, such as the Special Marriage.
