Should same-sex marriages be legalized in India?

Author: Shailja Singh, a student at Faculty of Law, University of Lucknow



Abstract:

This article examines the debate on legalizing same-sex marriages in India, exploring constitutional, judicial, and socio-legal considerations. It analyses the Indian Constitution’s fundamental rights and landmark judgments, and also draws on international precedents, to inform the Indian context. Additionally, it addresses sociocultural challenges and intersectional discrimination faced by LGBTQ+ individuals from marginalized communities. The article concludes that a multi-pronged approach, involving both judicial activism and legislative action, is necessary to legalize same-sex marriages in India. It emphasizes the need for a comprehensive legal framework that balances competing rights and interests, ensuring true equality and upholding the principles of constitutional morality, human rights, and social justice.





Introduction:
In India, same-sex couples do not have many of the same privileges as heterosexual married couples since marriage is still viewed as a heterosexual institution. The LGBTQIA+ community continues to promote social equality in light of this. The LGBTQIA+, which stands for Lesbian, Gay, Bisexual, Transgender, Intersex, Queer/Questioning, and Asexual/Ally, is an acronym. In order to incorporate other identities and orientations that aren’t mentioned explicitly in the acronym, the + sign is commonly employed.
The debate surrounding the legalization of same-sex marriages in India has gained significant traction in recent years, driven by the country’s evolving jurisprudence on LGBTQ+ rights and the growing demands of the queer community for equal recognition and protection under the law. This comprehensive legal analysis examines the constitutional foundations, judicial precedents, and the broader socio-legal considerations that underpin the ongoing discourse on same-sex marriage equality in India.

Constitutional Underpinnings and Judicial Interpretations:
At the core of the debate lies the Indian Constitution, which enshrines the fundamental rights to equality (Article 14), non-discrimination (Article 15), freedom of expression (Article 19), and the right to life and personal liberty (Article 21). In the landmark judgment of Navtej Singh Johar v. Union of India (2018), the Supreme Court of India decriminalized consensual same-sex sexual relations, recognizing the LGBTQ+ community’s right to equality, dignity, and privacy. The court held that “sexual orientation is a natural phenomenon determined by biology and genetics and is not the result of individual choice or assertion.”
This seminal ruling laid the groundwork for further claims around marriage equality, with the court emphasizing that the LGBTQ+ community is entitled to the same constitutional protections as any other citizen.
Building on this precedent, the Jammu and Kashmir High Court recognized that the freedom to marry the person of one’s choice is a fundamental right under Article 21 in Deepika Singh Rajawat v. Union Territory of Jammu and Kashmir (2021). The court, however, refrained from granting same-sex couples this privilege, instead referring the matter to the legislature.
In Abhijit Iyer-Mitra v. UOI (2021), the Delhi High Court declined to issue a judgment on same-sex marriages, stating that it was for the legislature to decide on the matter. The court noted that while the LGBTQ+ community has a right to dignity and equality, the definition of marriage was a matter of policy. These rulings demonstrate the courts’ reluctance to unilaterally legalize same-sex marriages, instead deferring the issue to the legislative branch of government.

International Precedents and Comparative Legal Frameworks:
The ongoing debate in India can be informed by the experiences of other jurisdictions that have grappled with the issue of same-sex marriage legalization.
In the landmark case of Obergefell v. Hodges (2015), the United States Supreme Court ruled that the fundamental right to marry is guaranteed to same-sex couples under the Constitution, paving the way for nationwide marriage equality. In 2017, the Constitutional Court of Taiwan ruled that the country’s civil code, which defined marriage as between a man and a woman, was unconstitutional. This landmark decision made Taiwan the first country in Asia to legalize same-sex marriage.
Similarly, in 2019, the Supreme Court of Costa Rica issued a ruling declaring the country’s ban on same-sex marriage unconstitutional, giving the legislature 18 months to change the law accordingly. These international precedents demonstrate that legal recognition of same-sex marriages can be achieved through both judicial and legislative means, providing potential pathways for India to follow.

Sociocultural Considerations and Challenges:
While the push for marriage equality in India has gained momentum, there are several sociocultural and legal challenges that need to be addressed. India’s traditional sociocultural and religious views on marriage and family structures remain a significant obstacle to the legalization of same-sex marriages. The Indian Parliament has thus far been reluctant to take up the issue, leaving the courts to navigate the complex legal and social implications.
Any move towards legalizing same-sex marriages may also raise concerns around the rights of religious institutions, adoption and surrogacy, and the role of the state in defining social institutions. These competing rights and interests must be carefully balanced to ensure a comprehensive and inclusive legal framework. Furthermore, the fight for marriage equality in India must also consider the unique challenges faced by LGBTQ+ individuals from marginalized communities, such as religious minorities, lower castes, and persons with disabilities. Intersectional discrimination and barriers to access must be addressed to ensure true equality.


The Way Forward: Judicial Activism and Legislative Action:
Given the complex legal and social landscape, the path to legalizing same-sex marriages in India may require a multi-pronged approach, involving both the judiciary and the legislature. The Indian judiciary can play a crucial role in further expanding the scope of fundamental rights and advancing the cause of marriage equality. By adopting a progressive interpretation of the Constitution and drawing on international precedents, the courts can pave the way for the legal recognition of same-sex marriages.
An example would be when the Supreme Court will review the issue of same-sex marriages and declare that the right to marry anyone one wants, as stated in Deepika Singh Rajawat, applies to gays. This will correspond with earlier court decisions on LGBTQ+ rights and equity as provided by the Constitution. In contradiction, another option is for the courts to take a more determined position and make a declaration of inconsistency similar to Human Rights Act of UK compelling legislations to alter statutes so they are consistent with constitution.
Moreover, at policy level, there is need for comprehensive legislation on same sex marriages. The Indian Parliament can initiate laws which explicitly recognize and protect rights of same-sex couples thereby addressing issues such as marriage registration, inheritance, adoption and social security benefits.
A successful legalization of same-sex marriages in India would necessitate a harmonized effort between the judiciary, legislature and civil societies. This effort must be grounded in the principles of constitutional morality, human rights, and social justice, ensuring that the fundamental right to marry is extended to all citizens, regardless of their sexual orientation or gender identity.

Conclusion:
The question of legalizing same-sex marriages in India remains a complicated and changing legal and social conundrum. Despite significant progress made in the country regarding LGBTQ+ rights, judicial reluctance, as well as lack of intervention by the legislature, have trailed on the path to achieving equality in marriage. With reference to international precedents, dealing with sociocultural norms and adopting an inclusive approach that takes into account the intersectional struggles experienced by the LGBTQ+ community, India can work towards extending its fundamental right to marry to all its citizens thereby upholding principles of equality, dignity and non-discrimination as enshrined in the constitution.
Thus, legalization of same-sex marriages in India is not only a constitutional exigency but also a significant stride towards creating an inclusive and just society where human rights and dignity for every person are cherished.

Frequently Asked Questions (FAQs):
What are the key legal precedents supporting the legalization of same-sex marriages in India?
The judgments of Navtej Singh Johar v. Union of India (2018), Pradyuman Krishnan v. Union of India (2022) and Navika Sharma v. Union of India (2021) have created a foundation upon which same-sex marriages can be legally recognized in India.

How does India’s stance on same-sex marriages compare to the global landscape?

Many countries all over the globe have already passed laws allowing for same-sex marriages while this issue has remained unsettled in Indian society. The worldwide movement towards positioning same-sex relationships as a basic human right puts pressure on India to adjust to these changes.

What are the main obstacles to the legalization of same-sex marriages in India?
Some primary barriers include deeply entrenched social and cultural norms, conservativeness/ traditionalist attitudes by some segments, and also ongoing efforts aimed at addressing the existing societal stigmatization and discrimination against LGBTQ+ people.

What would be the potential impact of legalizing same-sex marriages in India?
The legalization of same-sex marriages would help the same gay couples to have equal recognition in both social and legal terms, get access to advantages associated with marriage such as civil law protection and contribute towards the destigmatization and greater acceptance of LGBTQ+ community in India.