NAVIGATING THE LEGAL LANDSCAPE: ENSURING EQUAL RECOGNITION FOR SAME-SEX RELATIONSHIPS

 

AUTHORED BY - PRIYA JAISWAL

 

 

 

ABSTRACT

The present paper humbly inquires upon the issue of legal recognition for same-sex relationships. This paper highlights the fundamental rights guaranteed to each citizen irrespective of their sex or sexual orientation, especially the LGBTQIA+ community. The author attempts to convey some significant challenges faced by individuals in a same-sex relationship. It further pinnacles the benefits to same-sex couples upon the sanctioning of legal recognition of same-sex relationships. The author also strives to highlight the historical evolution of the fundamental rights guaranteed to LGBTQIA+ individuals with the help of judicial precedents. The author further points to the global perspective on same-sex relationships.

 

 Furthermore, the author expresses that following an exhaustive investigation into the legal climate surrounding same-sex relationships in India, it has become abundantly clear that there is an immediate requirement for the recognition and protection of these relationships by the law.  Although there have been some positive developments, such as the decriminalization of homosexuality and the recognition of the rights of transsexual people, same-sex couples in India continue to experience significant legal and cultural barriers to their relationships.

 

KEYWORDS: Gender Equality, Legal Recognition, LGBTQIA+ Rights, Marriage Equality, Same-Sex Relationships.

 

 

 

INTRODUCTION

India has a prolonged, distinguished, and diverse heritage of culture and society that is often popular among foreign countries. Still, when it comes to the recognition of same-sex relationships, it loiters from other countries. India has witnessed discrimination and stigmatization against the LGBTQIA+ community and criminalization of homosexuality for various decades.[1] “The LGBTQIA+ community in India has a long and complicated history, stretching back to prehistoric times when there were references to same-sex relationships in Indian literature and mythology. This community includes people who identify as lesbian, gay, bisexual, transgender, queer, and questioning. However, in more recent times, individuals who identify as LGBTQIA+ in India have been subject to discrimination, humiliation, and even criminalization due to India's legal position.”[2] “Section 377 of the Indian Penal Code, which was established in 1860 and criminalized homosexuality in India during the time that the British ruled it, made this practice a punishable offence. Under the provisions of Section 377, carnal intercourse against the order of nature, or same-sex encounters, were considered to be illegal.”[3]

 

The people from the LGBTQIA+ community were denied their fundamental rights like the right to sexual orientation, right to marriage, right to foster children or receive matrimonial property, etc. However, there has been a change in the legal environment in recent years regarding relationships between people of the same sexual orientation.[4] Section 377 of the Indian Penal Code, 1860 which criminalized homosexuality was eventually struck down by the Constitutional Bench of the Supreme Court in Navtej Singh Johar v. Union of India[5] which was a great triumph for LGBTQIA+ rights in the country. This has been a significant milestone for the LGBTQIA+ community in India, recognizing their right to love and intimacy without fear of persecution or prosecution. However, the Supreme Court remained silent on the question of the legality of same-sex marriages in India. Several legal cases have been filed in the Indian courts seeking to legalize same-sex marriage, but as of now, the courts have not yet granted legal recognition to same-sex couples. In 2017, the Delhi High Court declared that same-sex couples are entitled to be in a stable relationship, but stopped short of legalizing same-sex marriage However, challenges and discrimination persist, and there is a need for continued advocacy and activism to ensure equal rights and protection for the LGBTQIA+ community in India.[6]

 

CHALLENGES TO SAME-SEX RELATIONSHIPS

India has witnessed significant challenges that act as an obstacle to legalizing same-sex relationships which are as follows:

 

1. LEGAL RECOGNITION

The absence of clear-cut legal recognition for same-sex couples serves as a hurdle to the fundamental right of sexual orientation provided to each citizen in the country. In 2021, the Central Government opposed same-sex marriage in the Delhi High Court stating that marriage in India can be recognised only if it's between a biological man and a biological woman capable of producing children.[7] “There is still a lack of legal recognition and protection for same-sex relationships in India, despite the historic judgment that was handed down by the Supreme Court of India in 2018 that decriminalized homosexuality and relationships between people of the same gender.”[8]

 

1. DEFINITION OF MARRIAGE

The traditional definition of marriage states that it is the union of a man and a woman for life, but changing the definition from a man and woman to a man and man or woman and woman would adversely affect the social norms and standards. Same-sex marriage is not widely accepted in Indian society and legalizing it could create social unrest and have the potential to disrupt social values. Legalizing same-sex marriages could lead to legal complications as questions will be raised about the issues related to adoption and child custody.[9] Deep-seated societal norms and stigma surrounding same-sex relationships create an environment of discrimination, making it difficult for couples to gain acceptance from their families and communities.[10]

 

1. RELIGIOUS AND CULTURAL ETHOS

Same-sex marriages are adversely opposed by conservative cultural and religious groups as their traditional beliefs stand against such marriages. India is different from many liberal democracies where aspects of marriage, succession, and adoption are governed by religious personal laws. As far as the question of same-sex marriage is concerned, the Hindu, Christian, and Shariat laws in addition to customary law, govern marriages differently as per their rules and norms.[11] Many religious leaders have argued that marriage is for procreation, not recreation, and that legalizing same-sex marriage would undermine traditional family values.[12]

 

1. PARLIAMENTARY STATUTE

The deficiency of adequate statutes relating to same-sex relationships by the Indian Parliament serves as lacunae in providing legality to same-sex relationships. Only Parliament has the authority to decide on same-sex marriage as it is a matter of democratic right and the court should not legislate on the issue.[13] There is also a lack of political will to address LGBTQIA+ issues and advocate for legal changes which further complicates the path towards achieving equal rights for same-sex couples.[14] The country’s legal system does not provide for marriage equality and the rights and benefits that come with it, such as inheritance rights, joint property ownership, and adoption rights.[15] While attitudes towards LGBT rights have been changing in India, many people still do not support same-sex marriages. This could make it difficult for politicians to pass legislation legalizing same-sex marriages.[16]

 

 

 

ADVANTAGES OF LEGAL RECOGNITION FOR SAME-SEX RELATIONSHIPS

There can be tremendous benefits when legal recognition is sanctioned to same-sex relationships in India which are as follows:

 

1. EQUALITY AND HUMAN RIGHTS

The legalization of same-sex relationships will ensure equality among the people and eliminate all sorts of discrimination against the LGBTQIA+ community. The act of denying same-sex couples the right to marry is discriminatory and can significantly impact their lives and relationships. All individuals, regardless of their sexual orientation or gender identity, should have the right to marry and have their relationships recognized under the law which is even backed by Articles 14 and 15 of the Indian Constitution; which prohibits discrimination based on sex. The Supreme Court has even interpreted “sex” to include “sexual orientation” in the Navtej Singh Johar case.[17] Thus, denying same-sex couples the right to marry is a clear case of discrimination based on sexual orientation. [18]

 

1. FAMILY AND SOCIAL STABILITY

Legalizing same-sex relationships would promote equality and inclusivity in society as denial of same-sex marriage perpetuates discrimination against the LGBTQIA+ community, which is already marginalized and faces social and legal challenges. Legalizing same-sex marriage would provide equal rights and protections to all individuals, regardless of their sexual orientation, and would help in creating a more equitable society.[19] Legalizing same-sex relationships would promote social acceptance of LGBTQIA+ individuals and their relationships, and will further help to reduce discrimination and social stigma.[20] Recognizing same-sex marriages can have positive social and economic effects by promoting social inclusion, reducing social isolation, fostering stronger family bonds, and many more.[21]

 

1. ECONOMIC AND LEGAL PROTECTIONS

Legalizing same-sex marriages would provide legal protection and recognition for same-sex couples, including access to benefits such as inheritance, joint ownership of property, and healthcare.[22] Legal recognition of same-sex marriage can provide critical legal and financial protections, such as inheritance rights, access to healthcare, and spousal benefits; which is crucial because, with legal recognition, same-sex couples may have access to these protections.[23] It will provide the right to adoption to same-sex couples and they can also avail of public benefits such as healthcare or social security benefits of each other.[24]

 

1. GLOBAL PERSPECTIVES

In countries such as the USA, Costa Rica, and Taiwan, the courts took center stage with landmark decisions paving the way for marriage equality. On the flip side, the Legislatures in countries like Austria, and Germany enacted laws on legalizing same-sex relationships to achieve the same goals.[25] France has recognised same-sex couples culminating in the recent adoption of the law relating to the Pacte Civil de Solidarite (PACS) which provides for the registration of a couple's partnership regardless of their sex.[26] The Constitutional Court of South Africa has held that marriage laws that did not permit same-sex marriages were violative of Section 9(3) of the Constitution, which states: “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, color, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.”[27] Thus, when India legalizes the same-sex relationship, then it will stand equal to the aforementioned countries that have recognized the citizen’s right to marriage equality. Although India has a diverse origin that recognizes the interests of a large section of the society originating from different historical backgrounds and beliefs, legalizing same-sex marriages would be a significant step towards honing the secular fabric of the country.

LEGAL AND JUDICIAL APPROACH

Same-sex marriage in India has been a topic of significant debate and discussion nowadays. India has made significant treads in recognizing the rights of LGBTQIA+ individuals, including the decriminalization of same-sex relationships. Recently, the legal recognition of same-sex as well as queer marriages has turned out to be an important matter of discussion. In 2018, the Supreme Court of India overturned a colonial-era law known as Section 377 of the Indian Penal Code, 1860 which criminalized consensual homosexual acts. This landmark judgment was an important step toward recognizing the dignity and rights of LGBTQIA+ individuals. While this was a significant milestone, it didn't directly legalize same-sex marriage. India's marriage laws define marriage as a union between a man and a woman. Same-sex marriages are not explicitly recognized or protected by law. This lack of legal recognition denies same-sex couples access to essential rights and benefits that heterosexual couples enjoy, such as inheritance rights, property rights, adoption, and healthcare benefits. Legal challenges to same-sex marriage in India are beyond questions of law, they are in fact connected to our society, and religion and considered as a taboo for a common Indian.[28]

 

There has been a historical evolution of fundamental rights for the individuals belonging to the LGBTQIA+ community from the following judicial precedents:

 

1. Navtej Singh Johar & Ors. v. Union of India [29]

The Constitutional Bench of the Supreme Court partially struck down Section 377 of the Indian Penal Code, decriminalizing same-sex relations between consenting adults. LGBTQIA+ individuals are now legally allowed to engage in consensual intercourse. The Court has upheld provisions in Section 377 that criminalize non-consensual acts or sexual acts performed on animals. They found that Section 377 discriminates against individuals based on their sexual orientation and/or gender identity, violating Articles 14 and 15 of the Indian Constitution. Further, they ruled that Section 377 violates the rights to life, dignity, and autonomy of personal choice under Article 21. Finally, they found that it inhibits an LGBTQIA+ individual’s ability to fully realize their identity, by violating the right to freedom of expression under Article 19(1)(a).[30]

1. National Legal Services Authority v. Union of India[31]

This judgment was addressed by the Supreme Court as “the right of transgender persons to equality under the Constitution and the right against discrimination was recognized by this Court in NALSA.” It also recognized the importance of the right of transgender persons to marry. In the NALSA judgment, the Supreme Court also stated that “the State by rendering the transgender community invisible and failing to recognize their gender identity deprived them of social and cultural rights. This Court recognized the duty of the State to enable the exercise of rights by the transgender community and issued a slew of directions to enforce this duty.” Justice Bhat in his opinion distinguished the judgment in NALSA from the present case and highlighted that “directions (in NALSA) were passed because the ‘inadequacies … were acute and intolerable’ and faced by ‘entire groups’.”[32]

 

1. Justice K.S. Puttaswamy (Retd.) v. Union of India and Ors. [33]

CJI Chandrachud also highlighted the decision in the K.S. Puttaswamy case where it was “observed that the right to privacy extends beyond the right to be let alone to recognizing the vital personal choices such as the right to abort a foetus, and the right of same-sex to marry.” It was further noted that the issue in the K.S. Puttaswamy case was whether the Constitution recognizes a right to privacy rather than the right to marry. Therefore, the decision to recognize such a right falls upon the Supreme Court, as pointed out by the CJI.[34]

 

1. Supriyo @ Supriya Chakraborty & Anr v. Union of India[35]

In a landmark decision by the Honourable Supreme Court on October 17, 2023, the Constitution bench of India headed by Chief Justice of India DY Chandrachud, including Justice PS Narasimha, Justice S Ravindra Bhat, Justice Hima Kohli, and Justice Sanjay Kishan Kaul delivered the much-awaited judgment on the legal validation of same-sex marriages. The majority view in the case was given by Justice S Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha. The Supreme Court ruled by a 3:2 majority that non-heterosexual couples do not have the right to have their relationships recognized either as marriage or as a civil union while reaffirming the right of transgender persons in heterosexual relationships to get married.[36]

 

The minority views were given by Chief Justice of India DY Chandrachud, and Justice Sanjay Kishan Kaul expressing that the right to enter into a union should not be constrained or limited based on an individual's sexual orientation. In their opinion, discrimination against individuals on the grounds of sexual orientation constituted a clear violation of Article 15 of the Indian Constitution. The judges' minority opinion emphasized the importance of upholding the principles of equality and non-discrimination enshrined in Article 15 of the Constitution. They contended that these principles should extend to include the right to form unions or relationships, irrespective of an individual's sexual orientation. By asserting that discrimination based on sexual orientation is a breach of constitutional rights, the judges sought to challenge and overturn the prevailing legal and social norms that had denied recognition to unions of non-heterosexual couples. CJI also pointed out that “the Court should address whether the LGBTQIA+ community, as a sexual minority, deserves protection even in the absence of a specific law, recognize the challenges faced by LGBTQIA+ unions, and implement administrative guidelines acknowledging sexual orientation as a physiological phenomenon to prevent discrimination against same-sex unions.” Justice Kaul agreed with the CJI’s decision and stated that “if the SMA (Special Marriage Act, 1954) intends to facilitate inter-faith marriages, then excluding non-heterosexual relationships lacks a rational basis…Regulating only heterosexual marriages would not be a legitimate state objective, particularly given that sexual orientation is a protected category under Article 15(1) of the Constitution.[37]

 

Justice Chandrachud, while delivering the judgment said that “this court cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations. This court cannot read words into the provisions of the SMA and provisions of other allied laws such as ... because that would amount to judicial legislation. The court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which falls in the legislative domain." He further held in his 247-page verdict that, “we are conscious that the court usually first determines if the law is unconstitutional, and then proceeds to decide on the relief. However, in this case, an exercise to determine whether the SMA is unconstitutional because of under-inclusivity would be futile because of the limitations of this court's power to grant a remedy."[38] The Hon’ble Supreme Court directed the Centre, the State, and Union Territory governments to ensure that queer persons are not discriminated against, it also called upon the State to create awareness that this is not a mental disorder. It further asked the government to establish ‘Garima Grihas’, safehouses for queer persons. Furthermore, it stated that the police shall ensure that no queer person is harassed to ascertain gender identity, and they shall not be forced to go back to their natal families.[39]

 

Holding that transgender people in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions, the apex court said an entitlement to legal recognition of the right to a union, akin to marriage or civil union, or conferring legal status to the relationship can be only done through 'enacted law'. In their statement, the former judges said the apex court has convincingly ruled that it is not within its jurisdiction to make provisions for recognizing such marriages and that it is within the domain of Parliament. Twenty-two former high court judges, including Permod Kohli, S M Soni, A N Dhingra, and R C Chavan, put out the statement, "Hon'ble court has reconfirmed the well-settled principle of separation of power enshrined in the Constitution holding that the jurisdiction of the court is to interpret the constitutional and statutory provisions, and not to venture into a legislative domain, which solely vests with the competent legislature." They also noted that the thrust of the minority view in the five-member bench on equality, individual dignity, choice of civil union irrespective of sexual orientation, and privacy emanating from Articles 19, 21, and 25 of the Indian Constitution did not find favour with the majority in the bench. Further, they opined that, "an important feature of the majority view is recognition of marriage as a social institution in existence from times immemorial, pre-dating the concept of state. This gives credence to the bond of marriage between a man and a woman constituting the family as a primary unit of civil society as propounded by our scriptures.[40]

CONCLUSION

It is clear that denial of the choice of marriage to same-sex couples further reinforces discrimination by treating them differently. In a society that gives marriage such religious significance, the most satisfactory course would be the enablement of same-sex marriages under personal laws. However, it would be an uphill task to seek amendments to the personal laws of all religions. Any judicial intervention in this regard would be perceived as interference with religious freedom. In this scenario, the most viable option appears to be legislative amendments to the SMA to include same-sex marriages. The protests and debate relating to similar legislations in the United States serve to illustrate that an amendment in India would also invite vigorous opposition. Despite the apprehension of such public outcry, when the rights of a class of citizens are denied because of a majoritarian norm, an approach to the judiciary is just as right an approach as seeking legislation from the Parliament.[41]

 

Although, the bench did not rule in favor of the queer community but the sympathetic view of the Court towards such issues is commendable, and permission to marry a transgender person was given to other transgender and heterosexual people.[42] The Indian LGBTQIA+ community can challenge the constitutionality of the current laws that prevent same-sex marriage in court. Such legal challenges can help establish a legal precedent that will pave the way for the legalization of same-sex marriage. The legalization of same-sex marriage requires a concerted effort from all stakeholders, including the LGBTQIA+ community, the government, civil society, and religious leaders. By working together, we can create a more inclusive society where everyone has the right to love and marry whomever they choose, regardless of their gender.[43]

 

The discourse on same-sex marriage in India reflects a complex interplay of legal, societal, and cultural factors. While the decriminalization of Section 377 marked a significant milestone, the absence of specific legislation recognizing same-sex marriages remains a poignant gap in the country's legal framework. Societal attitudes, deeply rooted in tradition and influenced by cultural and religious beliefs, pose substantial challenges for LGBTQIA+ individuals seeking acceptance and legal recognition for their unions. The journey towards acknowledging and embracing same-sex marriages involves a collective effort. Activism and advocacy play a crucial role in challenging societal norms, fostering awareness, and influencing legislative changes. The struggles faced by same-sex couples in India encompass issues of familial acceptance, workplace discrimination, and limited access to support services, underlining the need for comprehensive reforms. The global landscape offers examples of countries that have successfully legalized same-sex marriages, providing a roadmap for India to consider as it navigates through this evolving terrain. The call for equal rights and inclusivity echoes not only in legal forums but also in educational institutions, workplaces, and cultural spaces. As India grapples with questions of tradition versus progress, the narrative on same-sex marriage is inherently tied to the broader conversation about human rights and individual freedoms. The pursuit of a more inclusive society necessitates open dialogue, education, and a re-evaluation of cultural and legal frameworks. In this evolving landscape, the hope is for a future where same-sex couples in India can experience the full spectrum of legal recognition, societal acceptance, and the fundamental right to marry without prejudice.[44]

 

It is important to note that there is still resistance to LGBTQIA+ rights in India, particularly from conservative religious groups. Any attempts to push for greater legal recognition and protection of LGBTQIA+ rights could face opposition from these groups, leading to potential legal and political battles. Overall, the future of LGBTQIA+ rights in India remains uncertain. While there are positive developments and potential for progress, there are also challenges and obstacles that need to be overcome. LGBTQIA+ activists and supporters need to continue advocating for their rights and pushing for change, while also working to raise awareness and promote greater acceptance and understanding in society as a whole.[45]

 

Following an exhaustive investigation into the legal climate surrounding same-sex relationships in India, it has become abundantly clear that there is an immediate requirement for the recognition and protection of these relationships by the law.  Although there have been some positive developments, such as the decriminalization of homosexuality and the recognition of the rights of transsexual people, same-sex couples in India continue to experience significant legal and cultural barriers to their relationships. Some of these barriers include discrimination based on caste and gender identity as well as the prohibition of public displays of affection. The absence of legal recognition of same-sex marriages and partnerships is one of the most significant barriers that must be overcome. Even though some nations have made same-sex marriage legal, India has not done so. As a result, same-sex couples in India are unable to take advantage of the majority of the legal protections and advantages that are available to married couples. Although the Indian Constitution contains clauses guaranteeing equality and prohibiting discrimination, neither of these ideals has been completely implemented for the LGBTQIA+ community. Violence against LGBTQIA+ individuals is a significant problem that needs to be addressed immediately. In the end, there is a pressing need in India for the legal recognition and protection of same-sex relationships. It is the responsibility of legislators, activists, and society as a whole to work towards the achievement of this goal. LGBTQIA+ individuals and couples deserve the same legal rights and protections as their conventional counterparts, and this objective must be accomplished. The struggle for same-sex marriage in India represents a critical juncture in the ongoing fight for LGBTQIA+ rights worldwide. As the debate continues, advocates, activists, and supporters must remain engaged and committed to the cause of equality and justice for all.[46]

 

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[1] Dr. Somlata Sharma, “Legal Recognition and Protection of Same-Sex Relationships in India: An Analysis” International Journal of Multidisciplinary Educational Research, June 30, 2023

[2] Aruna S. Katragadda, “Same-Sex Marriage in India: A Long Way to Go” Journal of International and Comparative Law (2015)

[3] Vikram Raghavan, “The Supreme Court's 'Historic' Judgment on Section 377 and the Rights of Homosexuals in India: Overview and Analysis” Journal of Homosexuality (2014)

[4] Supra Note 1

[5] AIR 2018 SC 4321

[6] Akshay Anunay, “Same-Sex Marriages in India: A complete overview” The Times of India, (May 6, 2023)

[7] “Perspective: Legalising Same-Sex Marriage” Sansad TV Discussions, December 14, 2022

[8] Shilpi Sinha, “The Plight of Same-Sex Couples in India: A Socio-Legal Analysis” Indian Journal of Law and Technology (2018)

[9] “Legalising Same-Sex Marriages in India and Associated Challenges” Forum IAS, August 28, 2023

[10] Pooja, “Breaking Barriers: The Path to Same-Sex Marriage Legalization in India” Legal Services India (2023)

[11] Supra Note 9

[12] Supra Note 1

[13] “Same-Sex Marriage: Struggle for Equality” Drishti IAS, April 29, 2023

[14] Supra Note 10

[15] Supra Note 6

[16] Supra Note 9

[17] Supra Note 5

[18] Supra Note 9

[19] Supra Note 6

[20] Supra Note 9

[21] Shaiju Mathew, “The Importance of Legal Recognition of Same-Sex Marriage” LinkedIn, April 20, 2023

[22] Supra Note 9

[23] Supra Note 21

[24] “Protecting Your Family After Marriage Equality: What You Need to Know” National Center of Lesbian Rights (2023)

[25] R. Sai Spandana, “Legal Recognition of Same-Sex Marriage” Supreme Court Observer, April 1, 2023

[26] Richards Claudina, “The Legal Recognition of Same-Sex Couples: The French Perspective” International and Comparative Law Quarterly, Volume 51 number 2 (2002)

[27] Minister of Home Affairs v. Fourie, (2006) 1 SA 524 (CC)

[28] “Same-Sex Marriage in India: A Review of Recent Supreme Court Judgments” Free Law, October 20, 2023

[29] AIR 2018 SC 4321

[30] “Constitutionality of Section 377 IPC” Supreme Court Observer, (June 16, 2023)

[31] Writ Petition (Civil) No. 400 of 2012

[32] Supra Note 28

[33] (2017) 10 SCC 1

[34] Supra Note 28

[35]  W.P.(C) No. 1011/2022 Diary No. 36593/2022

[36] Supra Note 28

[37] Ibid

[38] “Same-Sex Marriage Verdict Highlights: For Parliament to Decide on Legal Status, Rules SC” Hindustan Times, October 18, 2023

[39] Srishti Ojha, Kanu Sarda, “No legal recognition to same-sex marriage, Supreme Court leaves it to Parliament” India Today, October 17, 2023

[40] “Group of Ex-Judges Praises SC Verdict Denying Legal Recognition to Same-Sex Marriage” Deccan Herald, October 21, 2023

[41] Nayantara Ravichandran, “Legal Recognition of Same-Sex Relationships in India” Manupatra (2017)

[42] Supra Note 28

[43] Supra Note 13

[44] Supra Note 10

[45] Supra Note 6

[46] Supra Note 1