Author : Palak Luthra , a 2nd year BA LLB student at IILM college of law ,greater noida.
ABSTRACT:-
In India, same-sex marriage is still a controversial legal matter even after major advancements like the legalisation of Section 377 in 2018. This article highlights significant court decisions such as the Naz Foundation and NALSA cases and their effects on LGBTQ+ rights as it explores the legal path towards same-sex marriage recognition. In addition to discussing societal and legal issues, it investigates constitutional arguments founded on equality and individual freedom. The future of same-sex marriage in India is examined in this essay, which highlights the necessity for legal reforms that guarantee equality and dignity for all individuals in light of the growing support from activists and changing judicial viewpoints.
INTRODUCTION:-
It has long been believed that marriage is a holy union, a manifestation of two people’s love, devotion, and companionship. For millennia, Indian marriage has been understood as a union between a man and a woman, based on social, religious, and cultural conventions. A fundamental aspect of family life, it is a connection that not only unites two people but also influences communities and societies. But our perceptions of relationships, love, and what it means to be genuinely free to express oneself also evolve with the world.
In this regard, same-sex marriage—the union of two people of the same sex in a legally recognised partnership—has emerged as a major concern in many nations worldwide. LGBTQ+ couples now have the same rights and recognition as heterosexual couples in many parts of the world, where same-sex marriage has already been accepted. However, the road to this kind of equality in India is still unclear and constantly changing. The issue of whether same-sex couples should be permitted to marry has not been resolved, even after the Supreme Court of India decriminalised consensual same-sex relationships under Section 377 of the Indian Penal Code in 2018.
Indian culture, tradition, and the struggle for human rights and dignity are all intricately entwined with the legal dispute around same-sex marriage. For many LGBTQ+ people, the freedom to marry their partner is about more than simply legal recognition; it’s about equality, affirmation, and the basic desire to live a fearless and open life. It is still very difficult for same-sex couples to fully participate in society without the legal privileges that come with marriage, such inheritance, adoption, or health care benefits.
The purpose of the article is to examine the legal, social, and constitutional obstacles that the LGBTQ+ community faces when it comes to same-sex marriage in India. It aims to comprehend the human need for love and equality in a country where the fight for acceptance is still going strong, as well as the wider ramifications of legal recognition for same-sex couples. We will learn about the court cases, the changing social perceptions, and the possibility of change regarding same-sex marriage in India during this trip.
LANDMARK CASES:-
- Naz Foundation v. Delhi’s NCT Government (2009)
The LGBTQ+ rights movement in India saw a turning point with this lawsuit. Section 377 of the Indian Penal Code, which made consenting same-sex relationships illegal, was challenged in a Delhi High Court case by the non-governmental organisation The Naz Foundation. The Delhi High Court made a landmark ruling in favour of decriminalising homosexual acts between consenting adults, claiming that Section 377 infringed upon fundamental rights protected by Articles 14, 15, and 21 of the Indian Constitution, particularly the right to equality and the right to life and personal liberty.
Despite not addressing same-sex marriage, the ruling set the stage for upcoming legal issues pertaining to LGBTQ+ rights. There was some hope that same-sex partnerships would eventually be recognised after the court’s ruling was generally hailed as a triumph for sexual minorities in India. The Supreme Court reversed the ruling four years later, thus this triumph was short-lived.
- Navtej Singh Johar v. Union of India (2018)
The most significant case involving LGBTQ+ rights in recent years was the Navtej Singh Johar case, which resulted in the legalisation of same-sex relationships in India. When the Supreme Court pulled down Section 377 of the Indian Penal Code in a momentous ruling, it effectively decriminalised consenting same-sex conduct between adults. The Court ruled that the criminalisation of homosexuality was unconstitutional, citing the violation of fundamental rights such the right to equality and dignity.
The ruling was a revolutionary stride forward, even though it did not cover the legalisation of same-sex marriage. The decision, which upheld the idea that sexual orientation is a matter of personal choice and shouldn’t be the basis for discrimination, was widely hailed as a victory for LGBTQ+ rights in India. The need to give same-sex couples marital equality became the main topic of discussion after this ruling, and calls for the legalisation of same-sex unions became louder.
- National Legal Services Authority (NALSA) v. Union of India (2014)
The rights of transgender people in India were revolutionised by this case. The Supreme Court acknowledged the freedom of transgender individuals to self-identify and to equal chances in society by recognising them as a third gender. Despite not specifically addressing same-sex marriage, the case established a significant precedent by reaffirming that everyone is entitled to equality, dignity, and legal protection, regardless of gender identity or sexual orientation. The decision advanced the discussion of more general LGBTQ+ rights, such as marriage equality, by granting transsexual people the same rights as regular citizens. The NALSA case contributed to the development of a legal framework that allowed the movement for same-sex marriage to continue to gain momentum by highlighting autonomy and non-discrimination.
CONSTITUTION IMPLICATIONS:-
Fundamental rights and the interpretation of constitutional articles in the context of equality, dignity, privacy, and freedom of choice are the main topics of discussion regarding the constitutional implications of same-sex marriage in India.
- Right to Equality (Article 14):
The equality principle under Article 14, which ensures that every citizen has the right to equal protection under the law, forms the basis of the main defence of legalising same-sex marriage. The Constitution’s equal treatment principle is violated when same-sex couples are denied the opportunity to marry, as this practice continues discrimination based on sexual orientation. The Supreme Court upheld that discrimination based on sexual orientation is an infringement on the right to equality in seminal judgments such as Navtej Singh Johar v. Union of India (2018), which decriminalised same-sex relationships.
- Right to Life and Personal Liberty (Article 21):
The right to life and personal liberty, including the freedom to choose one’s own relationships, are guaranteed by Article 21. Therefore, regardless of gender or sexual orientation, the Constitution guarantees an individual’s autonomy, which includes the right to marry whoever they choose. One of the most important arguments in favour of same-sex marriage is the case of K.S. Puttaswamy v. Union of India (2017), which increased the right to privacy. It underlined that individual choices on intimacy and marriage are private affairs that are safeguarded by the Constitution.
- Right to Freedom of Expression (Article 19):
Marriage is one way that same-sex couples can officially demonstrate their love and commitment to one another. Every rule that prohibits people from getting married violates their Article 19 right to freedom of expression. It is also believed that the right to live a life of liberty and dignity includes the ability to enter into a legally recognised marriage.
- Non-Discrimination (Article 15):
It is prohibited by Article 15 to discriminate on the grounds of religion, ethnicity, caste, sex, or place of birth. The extension of this protection to sexual orientation safeguards same-sex couples from being denied civil rights, such as marriage. The stark contrast between the notion of non-discrimination and the prohibition of same-sex weddings emphasises the necessity of their recognition under the constitution.
- Constitutional principles and international human rights law:
International human rights standards also have an impact on the constitution. The freedom of same-sex couples to marry is a fundamental human right, as the UN and other international organisations have reaffirmed. Taking such a stance is consistent with the Constitution’s guarantee of human dignity and fairness.
SOCIETAL IMPLICATIONS OF SAME-SEX MARRIAGE IN INDIA:-
In India, the debate over same-sex marriage is changing due to changing social attitudes and important legal ramifications. Despite not being legal yet, same-sex marriage would have a significant social influence on family relationships, legal rights, and cultural standards.
- Changing the Meaning of Marriage and Family :
In India, marriage has long been seen as a sacred institution for making children and establishing family ties. Legalising same-sex marriage would acknowledge partnerships that are not predicated on gender standards, challenging these long-held beliefs. It makes it clear that family is about more than just having children; it’s also about equality, love, and friendship.
- Acceptance of LGBTQ+ Rights
For the LGBTQ+ community, legalising same-sex marriage would be a historic win that would uphold their equal and unrestricted freedom to love. Even if the legalisation of Section 377 in 2018 was a big milestone, marital equality is still a long way off. In addition to fostering equality and dignity, legal recognition would grant LGBTQ+ couples essential legal rights like adoption, inheritance, and healthcare benefits.
- Changing Perceptions
Younger generations in India are becoming more and more in favour of same-sex marriage and other LGBTQ+ rights. According to a 2021 Pew Research Centre research, 51% of Indians between the ages of 18 and 29 are in favour of same-sex marriage, which is indicative of a larger trend toward acceptance, particularly in cities. More people are probably going to accept variety in partnerships as awareness rises.
- Economic Effects
Marriage between people of the same sex may also be advantageous economically. Financial security would be promoted by legal recognition, which would allow couples to receive advantages like health insurance and joint property ownership. Additionally, India may experience a rise in LGBTQ+ tourism, drawing tourists to a nation that is regarded as accepting and progressive.
CONCLUSION:-
To sum up, the process of legalising same-sex marriage in India has been both difficult and motivating. Although social perceptions are slowly shifting, the Navtej Singh Johar v. Union of India (2018) ruling marked a sea change by decriminalising homosexuality and sparking crucial discussions about equality and rights. The battle for marriage equality is obviously far from ended, despite the fact that this ruling represented progress.
Legal obstacles still exist, as current marriage laws continue to deny same-sex couples the same privileges as heterosexual couples. Inequality and a feeling of unfairness are sustained by this exclusion. However, there is hope for improvement as the country grows more conscious and tolerant of LGBTQ+ concerns. Future law revisions appear more feasible as a result of the changing public sentiment.
The willingness of the legislative and judiciary to preserve the values of justice and equality will ultimately determine the future of same-sex marriage in India. The road to legal recognition will become more obvious as more individuals speak up for what’s right and as our society grows more accepting.
In addition to being a legal win, same-sex marriage would be widely accepted as a potent symbol of human dignity, love, and acceptance. The progress we have made thus far gives optimism that India will eventually become a nation where love in all its manifestations is equally honoured, despite the fact that the road ahead may be long.
FAQ’S:-
- Can two people of the same sex marry in India?
Same-sex marriage is still illegal in India, notwithstanding the Supreme Court’s historic ruling in the Navtej Singh Johar case decriminalising same-sex relationships in 2018. With continuous judicial assessments and public conversations, the controversy is still going strong.
- Why is there opposition to same-sex marriage being legalised in India?
Traditional social, religious, and cultural standards are a major source of the resistance. Many contend that marriage is a strongly ingrained tradition that should only be consummated by a man and a woman, particularly in India. Nonetheless, progressive lawmakers and younger generations are advocating for a change in public perceptions.
- How likely is it that same-sex marriage will be permitted in India?
Although a precise timeframe is unclear, reform is gaining traction. The Supreme Court and other legislators have demonstrated a greater willingness to reevaluate the laws pertaining to same-sex relationships in recent years. Social views are changing, and there might be big changes to the law soon.National Legal Services Authority (