The right to equality in the context of same sex marriages in India

INTRODUCTION:
India has made great progress in advancing LGBT rights in recent years, with the Supreme Court
decriminalizing homosexuality in 2018, some form of social acceptance has emerged especially
from the younger generation of this country.
However, homosexuality and same-sex marriage still remains a taboo in this socially
conservative country. The Indian government has been of the opinion that the Same Sex marriage
is a matter that should be decided in parliament.
The right of equality and equal protection under the law is guaranteed in Articles 14 and 21 of
the Constitution. In April 2014, the Supreme Court of India ruled in NALSA vs Union of India
that the rights and freedoms of transgender people in India were protected under the
Constitution; in September 2018, the Supreme Court also decriminalized adult consensual same-
sex relationships in the Section 377 judgment review.
However, it does not necessarily mean that LGBT people in India are fully free of prejudice and
discrimination in equal treatment among their fellow citizens in India especially in the equality
of marriage and social acceptance of same sex couples.
ABSTRACT:
The term human being covers all persons without making any difference on the basis of sexual
orientation. The Constitution of India, in article 14, guarantees all persons' right to equality
before the eyes of law, however unfortunately, in the Indian Penal Code 1860, a specific penal
provision 2 had been made for those engaged in performing same-sex physical relations. This
penal provision was in force for 158 years.
Supreme Court of India making the provision unconstitutional in 2018 could not change the
mindset of Indian society, which still believes homosexuality is a sin or a mental illness. Most of
the developed countries in the world do not discriminate on the basis of sexual orientation and
these countries have supported same-sex marriage. The thought regarding consensual sexual
performance between persons of same-sex or same-sex marriage has been changing very slowly
in Indian society.
This paper aims to present the following questions about the present status of LGBT couples:
1. What are the fundamental human rights of LGBT couples and the recognition and
protection of their relationships ?
2. Does the Indian Penal Code violate the rights of LGBT couples by not Legalizing same-
sex marriage ?
3. What is the role of the judiciary with regards to equality in marriage?
4. What is the present scenario of LGBT people in Indian society?
WHAT IS LGBT?
LGBT stands for Lesbians, Gays, Bisexuals, Transgenders. The word lesbian denotes a woman
who is attracted to another woman. Similarly, if a man is attracted to another man, that man is
known as gay. Bisexual means the person attracted to both sexes, i.e., he/she is attracted to a man
and a woman. Transgender denotes those persons whose gender identity matches neither a man
nor a woman. When lesbians, gays, bisexuals, transgenders are attracted to the same sex rather
than the opposite sex, it’s called homosexuality. Homosexuality is nothing but a mere sexual
orientation.
THE INDIAN PENAL CODE AND THE LGBT COMMUNITY
Since 1860 section 377 was in force, and it played a vital role against the LGBT people.
Whenever they had been caught either for staying together or for any other reason, they suffered
a lot from society as well as from police authority. They have suffered physical torture by the
police authority for their sexual orientation or behavior.
Thomas Macaulay drafted the Indian Penal Code, in which Homosexuality was a provision
based upon the Buggery Act. 'Buggery' is defined as an unnatural sexual act against the will of
God and man, thus, criminalizing same-sex intercourse.
It is shocking and unfortunate to see that it took nearly 158 years after the passage of the Indian
Penal Code to decriminalize consensual sexual activity between same sex partners !
ROLE OF JUDICIARY WITH REGARD TO DECRIMINALIZING SECTION 377
The Indian judiciary played a vital role in decriminalizing section 377 of the Indian Penal Code.
But it must be kept in mind that the entire section 377 is not decriminalized. There are several
landmark judgments given by various High Courts and Supreme Court which have clearly
supported the homosexual activity as natural one, not as an offence. The so-called sodomy law
i.e., section 377 which punishes the carnal intercourse with life imprisonment, has been finally
struck down. The following judicial precedents will help to appreciate the role of the Indian
judiciary with regard to decriminalization of section 377:
a) The Naz Foundation case (I) : In this case, the constitutionality of section 377 of IPC was
challenged before the Delhi High Court. It was contended by the petitioner that section 377 is
clearly violative of Article 14, 15 and 21 of Indian Constitution. Article 14 describes that every
person is equal before the eye of law and everyone shall get equal status. Article 15 which says
about prohibition on discrimination on the ground of sex, race, caste etc. Article 21 talks about
the right to life and privacy. Despite the presence of constitutional mandates, LGBT people were
continuously being harassed and discriminated. Therefore, section 377 was continuously
affecting the fundamental rights and human rights of LGBT people. The petitioner also
contended that the impugned section discriminates on the ground of sexual orientation which is
an absolute choice of every person. The Delhi High Court stated that if two persons of the same
sex are performing sexual activity with their own consent, it will not amount as a crime. If it
amounts as crime, then it is a violation of fundamental right which is protected by Constitution.
India’s laws define marriage as a union between a man and a woman.
Several legal cases have been filed in 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.
The legal recognition of same-sex marriage remains a distant dream for LGBT couples in India.
The lack of legal recognition not only denies the LGBT couples legal and social benefits but also
increases the risk of discrimination and violence.
Challenges and discrimination continues, and there is a need for continued advocacy and
activism to ensure equal rights and protection for the LGBT community in India.Currently, the
country’s legal system denies the rights of LGBT marriage equality and the rights and benefits
that come with it, such as inheritance rights, joint property ownership, and adoption rights.
Denying LGBT individuals, the right to marry based on their sexual orientation is a violation of
the fundamental rights and freedoms and that all individuals, regardless of their sexual
orientation, should have the right to choose who they marry and should be allowed to enjoy the
same legal benefits and protections as heterosexual couples.
It would promote equality and inclusivity in society as denial of same-sex marriage perpetuates
discrimination against the LGBT 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.
It would benefit the society as a whole as legalizing same-sex marriage would have a positive
impact on the mental health and well-being of LGBT individuals, who currently face high rates
of discrimination, harassment, and violence. Additionally, it would help in creating a more
accepting and tolerant society and would reduce the stigma and discrimination that the LGBT
community currently faces.
Lastly, it is consistent with the principles of secularism and democracy, which India is founded
on, as the Indian constitution guarantees equality and freedom to all citizens, regardless of their
sexual orientation, and legalizing same-sex marriage is a necessary step towards fulfilling this
promise of the constitution.
On the other hand, opponents of legalizing same-sex marriage argue that marriage is a sacred
institution that is defined as a union between a man and a woman. They believe that changing the
definition of marriage to include same-sex couples would undermine traditional family values
and the institution of marriage. They argue that the primary purpose of marriage is to procreate
and raise children, and that same-sex couples cannot fulfil this purpose, thus making their union
fundamentally different from that of opposite-sex couples. As the Supreme Court heard pleas for
legalizing same-sex marriages, it is important to argue that if LGBT couples cannot procreate. Is
procreation a valid defense from keeping the LGBT couples from being married? None of the
marriage statues prescribe any upper limit for marriage. Women beyond 45, who are unfit for
pregnancy, are allowed to marry. Heterosexual couples who cannot have children are allowed to
marry. Then why is this discrimination only against LGBT couples as there is no guarantee that a
heterosexual couple can procreate.
Second argument against same sex marriage is that, it would have a negative impact on children
raised by same-sex couples. It is argued that children need both a mother and a father to have a
well-rounded upbringing and that same-sex couples cannot provide this. It is also claimed that
children raised by same-sex couples are more likely to have emotional and behavioral problems,
and that legalizing same-sex marriage would promote the adoption of children by same-sex
couples, which would be detrimental to the child’s well-being. The same is argued against the
children born to heterosexual couples, and raised by heterosexual couples that such baseless
presumptions should not have any standing in judicial system of a democracy.
Thirdly it is also argued that, legalizing same sex marriage would lead to a breakdown of social
norms as it would pave the way for other forms of unconventional relationships and would
ultimately threaten the country’s cultural and religious traditions. This belief system that the
same-sex marriage is not consistent with the Indian cultural and religious beliefs, and that
legalizing it would be a step towards westernization and would lead to the erosion of traditional
values is grossly a biased opinion. With or without the same sex marriage, it is evident that
Indian society is being heavily influenced by the western culture. It is not appropriate to state
that the demand for same sex marriage is due to western influence. In fact, it is a demand of
LGBT couples for a basic human right to be treated equally.
Lastly, opponents of same-sex marriage argue that the majority of the Indian population does not
support it as the traditional values of the country are under threat and that legalizing same-sex
marriage would go against the beliefs and opinions of the majority of the population. It is
important to note that these arguments are not unique to India and have been made in other
countries as well.
The issue of same-sex marriage in India is complex and involves various cultural, religious, and
legal perspectives. The cultural and religious perspectives are deeply ingrained in Indian society
and are often cited as a reason for opposing same-sex marriage. From a cultural perspective,
marriage is considered a sacred institution in India. It is viewed as a social contract between two
families and is seen as a way to continue family lineage and traditions. Traditional Indian society
is largely conservative, and same-sex relationships are not widely accepted. LGBT individuals
are often stigmatized and discriminated against, and their relationships are viewed as unnatural.
From a religious perspective, many of the major religions in India, including Hinduism, Islam,
and Christianity, consider homosexuality to be a sin. These religions view marriage as a union
between a man and a woman, and same-sex marriage is not recognized. From a legal perspective,
same-sex marriage is not currently recognized in India. The Indian Constitution does not
explicitly mention sexual orientation, and homosexuality was decriminalized in 2018 by the
Supreme Court, but same-sex marriage is still not legal. LGBT individuals do not have the same
legal rights as heterosexual couples, including the right to marriage, adoption, and inheritance.
Although, the Indian government has not yet legalized same-sex marriage, in 2017, the Delhi
High Court ruled that the right to marry is a fundamental right and that denying same-sex
couples the right to marry is a violation of their rights. This decision was later overturned by the
Supreme Court, which held that the issue of same-sex marriage should be left to the legislature.
The Indian government has not yet passed comprehensive anti-discrimination laws to protect
LGBT individuals from discrimination in employment, housing, and public accommodations.
However, some states, such as Tamil Nadu and Kerala, have introduced anti-discrimination laws
that include protections for LGBT individuals.
However, it is important to note that there is still resistance to LGBT rights in India, particularly
from conservative religious groups. Any attempts to push for greater legal recognition and
protection of LGBT rights could face opposition from these groups, leading to potential legal and
political battles. Overall, the future of LGBT 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. It is important for LGBT activists and supporters 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.
On 17th OCT 2023, Supreme Court, pronounced four judgments– written by CJI DY
Chandrachud, Justice SK Kaul, Justice Ravindra Bhat, and Justice PS Narasimha respectively. It
had unanimously held that there was no fundamental right to marry in India. Supreme Court of
India has declined to grant legal recognition to same-sex marriages, drawing criticism from
LGBT rights activists, who dubbed the verdict “regressive”.
“The court has failed its duty to uphold the constitutional rights of the people of India not to be
discriminated on the basis of their sexuality,” India's Supreme Court declined to legally
recognize same-sex marriage. The court said that the issue should be decided by parliament.
However, the court did emphasize that queer relationships should not face discrimination by the
state. The court held that there was no fundamental right to marry in India. All five judges agreed
there is no fundamental right to marry.
The court instead accepted the government's offer to set up a panel to consider granting more
legal rights and benefits to same-sex couples. The ruling means that LGBT couples can now
engage in relationships without fear of legal repercussions. However, denied marriage rights, and
having no legal status in terms of family matters, like succession, inheritance or even hospital
visitation rights, make the LGBT couples unequal in comparison to the heterosexual couples in
the society. In the court earlier in the year 2023, Prime Minister Narendra Modi’s government
cast arguments in favour of extending rights as “urban, elitist views”, stating that gay marriage is
“not comparable to the Indian family unit concept” comprising a husband, wife and children.
Chief Justice Chandrachud said introducing laws on equal marriage rights did not fall within the
jurisdiction of the court but was instead the preserve of parliament.“The court, in the exercise of
the power of judicial review, must steer clear of matters, particularly those impinging on policy,
which fall in the legislative domain,” he added.
Things are changing slowly for same-sex couples in India, who have faced an uphill battle to get
their rights recognized. A colonial-era ban on gay sex was lifted only in 2018.
The latest ruling on same sex marriage by Supreme Court means that LGBT people can now
engage in relationships without fear of legal repercussions, however, with denied marriage rights,
there is no legal status in terms of family matters, like succession, inheritance.
Those advocating change face opposition not only from Modi’s BJP, but also from right-wing
religious groups. These include BJP’s ideological parent Rastriya Swayamsevak Sangh and the
Jamia Ulama-i-Hind, which say marriages should only be allowed between “opposite genders”.
CONCLUSION:
Making the status of LBGT people equal to the heterosexuals is the need of time. The societal
stigma of being homosexual must be removed. If society accepts LGBT couples with the same
stature, like heterosexual couples, the true equality in marriage will prevail in India.
Overall, while the Indian government and judiciary have taken some steps towards recognizing
and protecting LGBT rights, there is still a long way to go towards achieving full equality and
acceptance for the community. The pending legal recognition of same-sex marriage and
comprehensive anti-discrimination laws will promote a need for further advocacy and
awareness-raising efforts to ensure that the rights of the LGBT community are fully protected.
There is a hope, looking towards the future, that India will continue to make progress towards
greater LGBT rights. There have been recent positive developments, such as the inclusion of
gender identity in the country’s census and the decision by several state governments to provide
transgender individuals with job quotas and reservation benefits. The recent legalization of same-
sex marriage in neighboring countries like Nepal and Taiwan could put pressure on India to
follow suit.
References:
Jane P. Sheldon, Carla A. Pfeffer et.al Beliefs about the Etiology of Homosexuality and about the
Ramifications
of Discovering Its Possible Genetic Origin,
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4545255
Naz Foundation v. Govt. of NCT of Delhi, 160 Delhi Law Times 277.
The Constitution of India,1950, art.14
The Constitution of India,1950, art.15
The Constitution of India,1950, art.21
Suresh Kumar Kaushal v. Naz Foundation, Civil Appeal No. 10972 OF 2013.
Supra n. 10.
NALSA v. Union of India & Others, Writ Petition (civil) No. 604 of 2013.
Justice K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161

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Sujata Kumaraswamy

First year LLB