SC Hearing on Legalization of Same Sex Marriage in India: Background and Updates

    Posted on 9 May, 2023 by Shubhangi Singh

    SC Hearing on Legalization of Same Sex Marriage in India: Background and Updates


    1861-Homosexuality was criminalized through Section 377 of the Indian Penal Code,1860 which dealt with 'unnatural offences' and said “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life.”

    1791-France became the first country to decriminalise homosexuality

    1989-Denmark became the first country to legalise same-sex unions

    2001-Netherlands became the first country to legalise same-sex marriage

    2014-16-4,690 cases of Section 377 reported in India according to NCRB statistics

    Naz Foundation v Government of NCT of Delhi and Others 2009- One of  the first case laws wherein Section 377 of the IPC was held unconstitutional, as it discriminated against the LGBTQ community of the country and violated their right to privacy. The landmark judgment given by Delhi High Court stated that Section 377 violates Articles 14, 15, and 21. This judgement was overturned by the Supreme Court in 2013.

    Navtej Singh Johar v UOI 2018-Landmark judgement wherein Supreme Court scrapped off section 377 and decriminialized homosexual sex among consenting adults.

    Thedecriminalization of Section 377 of the IPCrecognized the existence of same-sex relationships. It led to destigmatization associated with homosexuality in society and has enhanced psychological as well as emotional security among homosexuals and other sexual minority groups. The Supreme court broadened the scope of right to equality and dignity. It recognized the radical idea of self-determination to include one’s sexual identity and the idea of sexual agency.

    Fresh Look at Marriage in light of Decriminalization of Homosexuality

    i. In an effort to reconcile their orientation with societal pressures, many gay men and lesbian women in India put on a façade of being heterosexual; get married to a member of the opposite sex as an obligation to society locking them in unhappy marriages and impacting their mental health.

    ii. Gender specific laws pose a challenge to LGBTQ community’s rights by excluding them from protection. Rights with respect to succession, adoption and social security remain unavailable to LGBTQ citizens till date.

    2023-The Supreme Court has discussed the idea of cohabitation being recognised as a basic right for same-sex couples, entitling them to privileges without being equated with marriage.


    Ongoing Hearing before the Supreme Court-

    In 2018, the Supreme Court decriminalized homosexuality in a landmark judgement by scrapping off Section 377 of the Indian Penal Code, 1860. However, while this decision put an end to a colonial era ban on homosexuality, the LGBTQ community in India continue to be devoid of several important rights till date. In April 2023, the Supreme Court set up a 5-judge bench under CJI DY Chandrachud with the objective of hearing a batch of pleas seeking legal recognition of same sex marriages in India. They took note of the submissions of the Centre, represented by Solicitor General Tushar Mehta, that “right to love, right to cohabit, right to choose one's partner, right to choose one’s sexual orientation is a fundamental right." The plea for legal recognition of same-sex marriages arises from the argument that the right to marry a person of one’s choice must extend to LGBTQ citizens as well. The non-recognition of same sex marriages in India discriminates against the LGBTQ community’s fundamental rights to equality and dignity under Article 14 and 21 of the Constitution. The petitioners represented by senior advocate Menaka Guruswamy, advocate Arundhati Katju and Govind Manoharan point out that a number of crucial social and economic rights pertaining to opening of joint bank accounts, adoption, surrogacy etc. remain unavailable to LGBTQ citizens in India. They have highlighted that LGBTQ citizens comprise of 7-8% of the population and denying them the legal right to marriage is a violation of their basic rights under the Constitution.

    The BJP led Central Government has opposed the petitions on a number of grounds, first being that sexual relationship between individuals of the same sex cannot be considered a family unit in India which must comprise of a biological man and woman with children born out of a wedlock. This argument has been supported by a number of religious bodies such as Jamiat-Ulama-I-Hind which claim that same-sex marriage is an influence of western culture and should not be imposed in India. The Solicitor General has contended that right to marriage is not an absolute right and unrestrained personal autonomy could prove to be harmful in the future and used to challenge prohibited acts such as incest. This was however rejected by the bench calling it a far-fetched argument.

    The Bench has stated that they would not enter the realm of religious personal laws, instead choosing to examine whether the Special Marriage Act which permits marriages between members of various castes and religions as well as weddings held abroad, could be modified to include LGBTQ+ people. However, it has also recognized that the path ahead would be filled with obstacles. Changing just one law may not be the best course of action because there is a complex web of 35 laws governing divorce, adoption, succession, maintenance, and other related issues many of which overlap with religious personal laws.

    The bench continued, however, by saying that the court may act as a facilitator to encourage the government to find answers to the actual issues that cohabiting same-sex couples experience. They questioned Mr. Mehta on what the government planned to do to provide same-sex couples a sense of security and ensure they had fundamental social rights like the ability to open joint bank accounts, name a partner in insurance plans, and enrol their children in school.

    This led to the most recent significant development in the matter as the Solicitor General has informed the Supreme Court that the Central Government is willing to form a committee to investigate whether certain legal rights can be granted to same-sex couples without the relationship being recognised by the law as a “marriage”.

    The petition for legalization of same sex-marriages is a call for recognition of LGBTQ couples as a lawful union of two individuals and protection of their joint rights as a couple. The Supreme Court judges have suggested that recognition is needed for same sex relationships to receive certain benefits, but not necessarily as marriage. The CJI emphasized the importance of providing a sense of security and social welfare for people in such relationships.  The Supreme Court of India has discussed the recognition of cohabitation as a fundamental right for same-sex couples, which would entitle them to benefits without being equated to marriage. The road ahead to legalization of same sex marriage in India thus begins with the initial step of recognition of same-sex unions and their rights under the law.

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    Tags: same-sex marriage, Supreme court bench, LGBTQ rights




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