INTRODUCTION
The legalization of same-sex marriage in India has sparked debates in legal circles due to its impact on traditional perspectives on marriage. Marriage, defined by the Oxford Dictionary as a formal union between two individuals is now being re-evaluated in Indian law in light of Article 21 of the Constitution, which guarantees the right to choose a spouse regardless of gender. This constitutional provision challenges the historical conception of marriage as exclusively heterosexual and calls for a contemporary re-evaluation of marriage norms. India’s social progress has advanced alongside its economic growth but the acceptance of LGBTQIA+ individuals remains a contentious issue characterized by societal resistance and a struggle for autonomy and respect. Despite these challenges, there are hopeful signs amid ongoing social tensions. The Indian judiciary has consistently advocated social justice and inclusiveness through progressive legal decisions. However deep-rooted cultural norms and beliefs cannot be changed overnight even with major constitutional milestones such as India’s independence in 1950 and court decisions that decriminalized consensual homosexual activity. Despite legal progress, the wider acceptance of same-sex marriage reflects a larger societal transformation that continues to unfold and highlights the complexities of navigating tradition, law, and social change in contemporary India.
THE ISSUE
The refusal to legalize same-sex marriage is a significant setback for both the LGBTQ+ community and India, the world’s largest democracy known for its commitment to equal rights and constitutional principles. While the decriminalization of homosexuality in the Navtej Singh Johar case offered hope to queer couples, the Supreme Court’s recent ruling against legalizing same-sex marriage shifted the onus to lawmakers, complicating the fight for equality. The key question is whether this fight is about ensuring equal rights for all, or whether it is a matter of legislative jurisdiction and the separation of powers. Is it guided by the intentions of the legislators or influenced by the ideologies of the current government? Time will reveal the underlying motivation behind this problem.
Historical Background: Society and Constitutional Development
Social institutions evolve and marriage is no exception to this rule. Despite consistent resistance by lawmakers to legalizing same-sex marriage in India based on traditional beliefs homosexuality has deep historical roots in Indian society. Ancient texts like Rigveda, Ramayana, Mahabharata, and Puranas mention various sexual identities without bias. Characters from the Mahabharata, such as Shikhandi, Chitrangada, and Brihannala, embody different sexual identities without encountering societal discrimination. Similarly, the Artha Shastra, a renowned treatise, depicts examples of queer individuals in specific professions. The homosexual sculptures at Khajuraho and Konark Sun Temple further confirm that homosexuality was historically accepted and not related to religious belief. Historical accounts such as the memoirs of the Mughal emperor Babur, Sufi poetry, and other medieval works provide concrete evidence of the prevalence of homosexuality in Indian society. Monuments such as those in Khajuraho, Madhya Pradesh depict homosexuality as a natural part of society rather than something that goes against religious beliefs. The notion that queerness is alien to Indian culture is misguided. Understanding the history of queerness in the Indian subcontinent remains incomplete in postcolonial discussions of homosexuality. Advocating for marriage rights for LGBTQ+ couples marks a significant shift in India’s evolving social landscape. India’s history shows its ability to adapt to social change, as seen in the debates over the introduction of divorce provisions in the Hindu Code Bill. Prevailing principles of justice replaced outdated traditions and reflected a shift from once-permissive practices to current legal restrictions and condemnations. The framers of the Indian constitution recognized the need for social progress and included provisions such as guidelines on principles of state policy and fundamental rights. Although not legally binding, these principles are fundamental to governance and demonstrate India’s commitment to developing societal values while preserving fundamental traditions as deemed necessary by the Constituent Assembly.
THE LEGAL PUZZLE
The complex legal environment surrounding LGBTQ+ rights and marriage in India presents a complex challenge. Although the law recognizes the different dynamics of relationships within the concept of “family”, it also creates a contradiction. Despite the absence of a direct ban on same-sex couples to hold
wedding ceremonies, their union remains unrecognized by state and non-state entities leading to the denial of the necessary social and material benefits associated with marriage. Court decisions have upheld the right to relationships under Article 21, which supports the freedom of LGBTQIA+ individuals to choose partners, cohabit, and engage in intimate relationships. However, in a recent court decision, the Supreme Court refrained from explicitly endorsing the right to marry, emphasizing the subjective nature of marriage across different religious, cultural, and social contexts. Although the Constitution does not explicitly recognize the fundamental right to marry, it preserves the values closely associated with marital relations. Legal precedents such as the Navtej Singh Johar and Puttaswamy verdicts on privacy reinforce fundamental rights related to sexual identity, autonomy, and privacy. Similarly, the NALSA case demonstrated recognition of gender identity while rejecting discrimination based on it. An ongoing legal battle deals with the exclusion of individuals from the institution of marriage based solely on sexual orientation. This evolving legal position regulates personal liberties privacy and gender recognition in the context of conjugal rights, a perennial legal issue in India. In enforcing constitutional morality, the judge is responsible for protecting the rights of minorities. While the considerations relating to the Special Marriage Act and possible amendments are relevant the denial of the existence of special rights based solely on these grounds raises questions. The original legislative intent of the Special Marriage Act to facilitate interfaith marriages also invites scrutiny of its application to same-faith marriages, prompting closer scrutiny of legislative intent and constitutional coherence.
INTERNATIONAL PERSPECTIVE
A party to the Universal Declaration of Human Rights (UDHR) since 1948, India recognizes the right of individuals to marry and find a family as enshrined in Article 23(2) of the. However, the Supreme Court decision in the Supriyo case distinguished between the right to marry and the right to choose one’s partner, saying the former is not guaranteed by the Constitution. The court focused narrowly on precedents related to the second law and did not consider international instruments in its deliberations. Comparing India with other countries where same-sex marriage is legal is challenging due to significant differences in development, including economic and social factors. While developed countries such as the United Kingdom and the United States have legalized same-sex marriage, several developing economies such as Brazil and Mexico have also taken this step. Contrasting Indian society with that of the US reveals profound differences in all aspects of development. Moreover, a comparison of India’s social development with that of other developing countries that have accepted same-sex marriage, such as Brazil and Mexico, highlights substantial societal differences in the acceptance of queer couples. Greece recently passed legislation allowing same-sex marriage, becoming the first Orthodox Christian country in the European Union to do so and grant same-sex couples parental rights. Despite India’s economic growth, its legal framework remains entrenched in outdated practices, making it difficult to garner broad support for legal reforms in this area.
CONCLUSION
The Chief Justice of India rightly points out that marriage is not a static institution but a dynamic concept that evolves and encompasses more than just the union of two individuals; it includes various rights and privileges. Evolving societal attitudes toward marriage equality for LGBTQ+ individuals reflect a significant shift in perspective. The challenges of obtaining marriage rights for LGBTQ+ couples in India are complex and often involve confronting discrimination daily. Over time, the growing recognition of same-sex couples underscores India’s need to adapt to these changes. India, with its rich cultural heritage, can embrace diversity by protecting the rights of all its citizens. This transformation requires a collective effort at all levels of governance to promote equality and dignity and move away from outdated practices toward promoting a more inclusive and compassionate society. As Indians, we are proud of our cultural heritage; therefore we should accept homosexuality as a natural aspect of our cultural mosaic.
Oxford University Press, The Oxford English Dictionary Online (2022), available at https://www.oed.com/.
Constitution of India, art. 21 (1950).
National Legal Services Authority (NALSA) v. UOI, MANU/SC/0309/2014.
Navtej Singh Johar v. UOI, MANU/SC/0947/2018.
K.S. Puttaswamy & Anr. v. UOI, ((2017) 10 SCC 1).
BBC, ‘India LGBT couples: ‘My parents were ready to kill me for their honour” (27 July), BBC News
Universal Declaration of Human Rights, art. 16(1) (1948).
The Special Marriage Act, 1954.
Constitution of India, art. 37 (1950).
TASK- LEGAL ARTICLE
Author- VAIBHAV SINGH
