Authored by Tridha Gosain & Kartik Shrivastava, 4th-year law students at Dharmashastra National Law University, Jabalpur
Introduction
Same-sex marriage has been fast becoming an issue of recognition and legalisation worldwide, with varying degrees of acceptance or resistance witnessed. The judgment passed recently by the Supreme Court in India holding same-sex marriage to be bereft of legal validity has evoked wide-scale discussion and has brought to the forefront the challenges associated with societal and legal change. The present article takes up this judgment for detailed analysis and brings in significant developments at the state level, such as the “Deed of Familial Association” proposed by the Madras High Court, and juxtaposes these against the legal landscapes in the United States and the United Kingdom.
Same-Sex Marriage: 2023 Supreme Court of India Ruling
As early as 2023, the recent Supreme Court of India judgment declined to grant the place same-sex marriage has been demanding within the periphery of law. The judgment of the five-judge constitutional bench, including Chief Justice D Y Chandrachud and Justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, and P S Narasimha, said, “Such a significant social change should be legislated upon by the Parliament.”.
It has also been held that issues pertaining to same-sex marriages are deep and go to the roots of socio-cultural norms; hence, they shall have to be resolved by the elected representatives who are answerable to the people. In his pronouncement, Chief Justice D Y Chandrachud, though stopping short of actually legalising same-sex marriage, would have lauded it as an expansion to LGBTQIA+ rights. "The discrimination meted out in the arena of health, employment, and residence must be effaced," he appealed for a more inclusive interpretation of the existing laws in a manner where the dignity and equality of the concerned community could fully be protected.
Justice Kaul said the formalities of legalisation have to be subject to a wider social debate and legislative decision; gradual evolution by society interspersed with sudden shockwaves of judicial intervention is an important factor in the deep adoption of that cultural practice by that society. While falling short of legalising same-sex marriage, this verdict restates elaborately the right of an individual to choose with whom he or she enters into a partnership. The Court expressed that LGBTQIA+ will be extended equality protection under the law and that their right to form a relationship shall not be discriminated against. This pure-form gradualistic approach maintains the constitutional rights to freedom, harmonizing the understanding for major changes in society to be legislated.
Progressive Stances: Deed of Familial Association by Madras High Court
While the Supreme Court has been cautious, the Madras High Court has shown relative alacrity. It was in 2023 that an idea of shaping a "Deed of Familial Association" was floated, this time by Justice Anand Venkatesh. It is intended to protect the LGBTQIA community. That juridical instrument would give members of the same sex some protection from harassment and discrimination, all sans formal registration of their union as a marriage. It would only enable registration of the relationship of same-sex partners. A proposed Deed of Familiar Association would allow same-sex couples to register and obtain limited legal protection for their relationships without equating them to marriage. DFA may protect against discrimination and harassment while also providing some rights to commodities such as hospital visits or shared living arrangements.
It is but proper to emphasise that such legal recognition is being extended by the DFA but does not completely give all the rights and benefits conferred upon parties in marriage. It thus argued that such is actually a temporary step and that it is being done as a way to put a safeguard for couples under the LGBTQIA+ spectrum until such time that the present law shall be updated.
The Kerala High Court held only at the beginning of this year, in Adhila Nasrin v. State of Kerala, 2022, that living together by same-sex couples cannot be declared illegal and that they have the right to live together. In that sense, the DFA proposal is rather unique within Indian jurisprudence. It provides a middle way, while not proceeding to full marriage recognition, of some legal protections without changing existing marriage law in a basic way. In some ways, the approach is like the early period creation of the UK's civil partnerships. There the feature is found in the constitutional structure of India's DFA, specifically in Article 21, involving the right to life and personal liberty. It is a very good example of how solutions answering the social need while keeping respect for the limitations imposed by the legislature are developed by Indian courts.
Comparative Analysis: United States and United Kingdom
Same-Sex Marriage in United States
The United States Supreme Court legalised marriage between the same sex in 2015 in the case of Obergefell v. Hodges. The court held that the right to marry is a basic and cardinal freedom that comes within individual liberty, to which liberty the right of the couple to marry is also explained under the Due Process and Equal Protection Clause of the Fourteenth Amendment. This landmark decision, in effect an accumulation after drawing a line under, spanned several decades of legal battling coupled with social advocacy to ensure a strong precedent actually set for marriage equality throughout the world.
According to the Obergefell decision, at that time, no law legalised same-sex marriage; the decision placed the mandatory legal obligation upon all the states of the country to recognize same-sex marriages conducted in accordance with the laws of the other states. In effect, it has accorded full legal recognition to a same-sex couple, with all of the attendant privileges and responsibilities enjoyed by a heterosexual couple in matters of inheritance, tax benefits, and parental rights. That journey has included great legal and social movements. While the state-level movements were significant in this regard, early momentum eventually needed to increase so much that public opinion could be moved and so that the way could be paved for federal recognition of marriage equality.
That approach stands in glaring contradiction to the situation currently prevailing in India. In some judgments relating to marriage equality, the prescriptivism that was extremely noticeable was based on U.S. Supreme Court decisions for constitutional protection, while in India, the Supreme Court has been playing second fiddle to Parliament in making such significant changes in society. This could speak to fundamental differences in the judicial approaches of both nations to any socially controversial issue.
This aspect is most crucial in an American context because it proves that grass-roots civil society work and incremental legal victories are the very foundation stones that drew the path of nationwide legitimacy. If, in 2018, decriminalising homosexuality was a historical landmark in the country, then the state-wise victories of marriage equality in the US are to be awaited at the threshold of history. Moreover, the trajectory of the States was also swept by phenomena like the AIDS pandemic, which generated more alertness and activism around issues concerning the LGBTQ+, very marginal in the Indian context.
Same-Sex Marriage in United Kingdom
The United Kingdom, though handled it differently; here, the process for the legal status treated it in an alternative manner; indeed, in this regard, same-sex pronation was a process.
The first recognition for civil partnerships came in 2004, which made it clear that the roles that same-sex couples had were to be treated in the same places as marriage. This was followed by the more recent law in 2013, sanctioning same-sex marriage under the Marriage Act 2013 for England and Wales. Scotland converted in 2014, and in 2020, in the face of intense pressure from the courts and civil society politics, Northern Ireland followed through with same-sex marriage. This UK strategy was to initiate the process for the acceptance of homosexuality with civil partnerships providing a ‘rung on the ladder’ toward full marriage equality. That is, gradualism in the process lowered societal drag and eventually cleared the gateway toward further acceptance of same-sex marriage.
Comparatively, India has not even bothered to formally embrace same-sex relationships, say by creating civil partnerships. While the UK Parliament has been very proactive in passing same-sex marriage, the Indian government has been fighting against the same, with the people debating on the issue in several high courts. Though changing the social attitude and long years of advocacy, viz-a-vis not only the U.S. but also the UK experiences, stand in the ladder of LGBTQ+ rights concerning same-sex marriage, it is India. It is, however, still subject to the dynamisms of divided public opinion. A survey by ILGA in 2019 revealed that only 29% of Indians liked the idea of same-sex marriage, as opposed to 50% who did not.
This entailed monumental changes in family laws by permitting marriage between same-sex couples in those countries. The process in India would, therefore, also not be easy and simple since the same legislation would entail huge changes in a large portion of existing law in the face of lots of opposition from traditionalists. Legalization will also bring a bouquet of constructive factors in the areas of adoption, inheritance, decision-making power in medical matters, and access to social security benefits for couples. This would be an initiative that is more inclusive and equal, hence reducing discrimination against the LGBTQ+.
Insights and Implications for India
The United States and the United Kingdom cases hold some lessons for India while it continues to grapple with the vexed issue of granting legality to same-sex marriage.
Constitutional Reinterpretation and Judicial Restraint
The 2023 Supreme Court decision balances constitutional interpretation with judicial restraint. The Obergefell v. Hodges US paradigm of judicial activism differs from this approach. If LGBTQ+ rights are to be advanced in the future, it may need sophisticated constitutional challenges. This may involve persuading the court to enlarge basic rights without infringing on other government departments. This might be done by filing lawsuits when contradictions in its body contravene current laws and constitutional pledges of equality and dignity. By this, the Court would be in the right position to act to settle the disagreement without its occurrence falling within the domain of the legislative body.
Federalism as a Catalyst for Progressive Change
Though India's federal government isn't comparable to America's, some aspects aided LGBTQ+ rights. The "Deed of Familial Association" suggested by the Madras High Court shows how state-level judiciaries may innovate within the legal system. That appears to imply that maybe the way the rest of India is going to arrive at this statewide recognition of same-sex couples is probably going to be via the bottom up: by states' creating precedents that ultimately filter their way to national legislation on the matter. The idea is that focused lobbying works best with responsive state governments and high courts, which, via judicial precedent pressure, leads to a domino effect at the national level.
Recalibration of Personal Laws and Secular Legislation
The decriminalisation of consensual homosexuality in India would further necessitate a comprehensive revamping of personal laws and, for that matter, secular law or legislation such as laws like the Special Marriage Act. On the other, India's legal system, much unlike the US or UK, is one with too many religious personal laws in conjunction with secular legislation, raising the implication that any movement toward the recognition of same-sex marriage would have to take up the institutionalization of such complex legal pluralism. It might therefore have repercussions for the interaction between personal laws and constitutional guarantees of other subjects, perhaps encouraging still greater reform possibilities in the wider realm of family law in India, and rip up conventional borders between secular and religious legal domains.
Societal Transformation Through Legal Evolution
The emphasis of the Supreme Court on the acceptance of society and legislative action as prerequisites for a change in the legislation on same-sex marriage suggests that legal advances in India are related to social growth. Unlike in the US where occasionally the legal recognition cleared the way for social acceptability, in India, the two types of changes likely have to happen hand in hand and that bears deeper implications for social movements and change methods. In reality, a successful road towards legal reform implies a two-track process: legislative and judicial lobbying on the one hand and a two-pronged approach to public education and social change activities on the other. The potential success of the LGBTQ+ rights movements in India will largely depend on the capacity of these movements to engender a general social change rather than simply seek legal redressal, and how this general social change can bring in a more organic and sustainable process of a change in social and legal recognition for same-sex relationships.
Conclusion
The 2023 Supreme Court of India decision on same-sex marriage, while not granting full marriage equality, represents a complex step in the ongoing journey towards protecting LGBTQ+ rights. As India continues to navigate this path, the experiences of both the United States and the United Kingdom offer valuable insights and potential lessons. These international examples highlight the interplay of judicial decisions, legislative action, and societal change that may inform India's approach to addressing same-sex relationship recognition and potential marriage equality in the future. Undergirded by popular will and judicial recognition, it is enabling legislation that will give this basic right to life to all citizens. The norms of society are changing—the universal aspiration for love, dignity, and equality of rights is reflected in the undying quest for marriage equality in India.