Authored by Saksham Saxena, a first-year law student pursuing B.A., LL.B. (Hons.) at Rajiv Gandhi National University of Law, Patiala
The marriage of two persons of the same sex or gender is known as ‘same-sex marriage’, which is also popularly known as gay marriage. Marriage between “same-sex couples” is legally conducted and recognised in 33 nations (nationally or in some jurisdictions) as of November 2023, with Estonia becoming the most recent, where same-sex marriages will be legalised from the 1st of January 2024. Even with the recent advancements in LGBTQ+ rights, same-sex marriages are still neither recognised nor protected by law in India. This is primarily because such weddings are not in line with the well-established cultural norms and traditions of Indian culture. Heterosexual marriages have been the acknowledged and customary norm for many years. India is a democratic country with a diverse population that works hard to protect the values of justice and equality for all of its members. However, the acceptance of same-sex marriage presents serious legal and social issues.
This blog aims to explore the legislative developments, societal views, and historical background of homosexuality and same-sex marriage in India.
Historical Evolution of Homosexuality in India
Same-sex relationships in India are not a recent phenomenon instead, homosexuality has had a long history. The subcontinent has had a long history of publicly recognising and even celebrating the variety of human sexual expressions. Ancient writings, artwork, and cultural practices that portray a more inclusive and flexible view of sexual identities are clear examples of this realisation. There was an elaborate acceptance of several kinds of human connection in ancient India, especially in the Vedic era. These types of connections extended beyond heteronormative norms. One of the earliest holy books, the Rigveda, has lines that portray a variety of relationships without overtly criticising any of them. Another example of how culture accepts gender and sexual fluidity is the concept of Ardhanarishvara, a divine creature that combines aspects of both male and feminine identity.
Nonetheless, the course of social standards changed throughout several centuries. During the Middle Ages, attitudes regarding sexuality changed due to several circumstances, including colonial influences, the codification of religious beliefs, and shifting political environments. This change resulted in the marginalisation of identities that are not heteronormative as well as the development of deeply rooted prejudices against same-sex partnerships. Victorian morality and the Indian Penal Code, which was enacted in 1860, brought strict morality to British colonial society. This led to the criminalization of "sexual relations against the order of nature," which in effect made consenting same-sex relationships illegal. This was a turning point in history when the celebration and acceptance of different sexual orientations became less prevalent and homosexuality was associated with hatred and suppression.
Legislative Developments and the Modern Perception Towards the Same-Sex Marriage in India
With the passage of time people started to stand up against unjust laws such as Section 377 of the Indian Penal Code which punished people who had homosexual relations, and with several such instances society has finally started to accept and accommodate the LGBTQ community, however, there exists many challenges in the way of achieving a society that is free and just for the LGBTQ community.
When it comes to human and civil rights, many industrialized nations have welcomed same-sex marriage. For a long time, third genders have endured gender discrimination. They have campaigned relentlessly for legal acknowledgement of their rights. “Legal protection” for gay partnerships on an equal footing with heterosexual couples is now required. The freedom to marry is ‘viewed’ as a “human right.” However, the Supreme Court in Supriyo Chakraborty v Union of India held that there is no fundamental right to marry. Although, the Hon'ble Supreme Court's decision in “National Legal Services Authority v. Union of India & Ors” was the first attempt to formally recognise their gender and the basic rights that all persons enjoy regardless of gender.
Hindu scriptures define marriage as the union of two souls. It is crucial to remember that gender is an attribute of the physical body, not the soul. The Hindu Marriage Act and other Hindu laws are based on these writings. It is crucial to recognise that the Act does not aim to in any way contradict the values contained in the sacred scriptures; rather, it is merely a codification of Hindu law. Let us never forget that every person, regardless of gender or any other feature, deserves respect and compassion.
Consensual same-sex relationships were made illegal by Section 377 of the Indian Penal Code, which classified them as "unnatural offences." This conventional law was implemented in India under British colonial authority as a direct outcome of Victorian morality. On September 6, 2018, the Indian Supreme Court unanimously overturned "Section 377 of the Indian Penal Code," which made same-sex relationships between consenting adults illegal. This was an enormous accomplishment for the LGBTQ population in India. A major turning point in the history of sexual minority rights in India was reached with the ruling in "Navtej Singh Johar v. Union of India & Ors." This judgement ended the discrimination against them by the state and society, which had long compelled them to live in shame. But the joyous occurrence was only the start of a complicated and multidimensional issue: the legalisation of same-sex marriage. As we commemorate the historic success of decriminalising same-sex partnerships, we also need to be aware of the obstacles in the way of realising inclusion and equality for all.
Decided Case on Same-Sex Marriage in India
Supriyo Chakraborty v. Union of India
Recently this year, 20 petitions were filed by same-sex couples, transgender individuals, and LGBTQIA+ activists. These petitions collectively challenged the provisions of the Special Marriage Act 1954, Hindu Marriage Act 1955, and the Foreign Marriage Act 1969, the petitioners contended that these acts do not recognise non-heterosexual marriages, which means that there is discrimination against the LGBTQIA+community. The union government had expressed willingness to constitute a committee to examine whether certain legal rights could be granted to same-sex couples and queer couples as well, without legal recognition of their relationship as a marriage. This was in response to a query raised by the court if certain executive instructions could be issued to ensure that same-sex and queer couples have access to welfare measures and social security, such as permission to open joint bank accounts, to name the partner as a nominee in the insurance policies, etc.
The constitution bench comprising CJI D.Y. Chandhachud, along with justices SK Kaul, PS Narasimha, SR Bhat, and Hima Kholi, heard the matter, and the hearing commenced on April 18, 2023, and the judgement was pronounced on October 17. The Supreme Court in the judgement refused to grant legal recognition for queer marriages in India. The court highlighted that it is a matter for the legislature to decide. But all the judges on the bench agreed that the Union of India shall constitute a committee to examine the rights and entitlements of persons in the queer union without legal recognition of their relationship as a marriage. The court also unanimously held that queer couples have a right to cohabit without any threat of violence, coercion or interference, but refrain from passing any directions to formally recognise such relationships as marriages. Tens of millions of LGBTQ Indians were looking forward to a happy conclusion, and the ruling dealt a serious blow to their dreams. Several activists are devastated that the court decided against extending full marital rights to same-sex couples, even though this was thought to be a potentially historic step for LGBTQ rights in the nation. On the other hand, there is still hope that things will improve in the future and that this will help same-sex couples in India advance.
Conclusion
The issue of same-sex marriage is becoming more and more important worldwide, and India could benefit from the countries that have accepted and allowed it. The LGBTQ+ community now has equal rights and protections thanks to the adoption of inclusive laws in nations including the US, Canada, and numerous European nations. India can learn from their mistakes and move in the direction of a similar stance on same-sex unions. This might entail figuring out how to encourage a more progressive and welcoming society by comprehending legal frameworks, public opinion, and cultural acceptability.
Even though the decision upset a lot of people, there is still optimism that the government would give same-sex couples additional rights and fulfil its pledge to form a committee to investigate the challenges they encounter, such as getting ration cards and getting pension benefits, etc. In conclusion, same-sex marriage is still a complicated and sensitive topic in India. Even after homosexuality was decriminalised in 2018, same-sex marriages are still not legalised. Even though the Supreme Court's decision in Navtej Singh Johar v. Union of India was a major step in the right direction, further legal change is still required before same-sex couples enjoy equal rights and benefits. Unfortunately, prejudices and cultural attitudes still stand in the way of same-sex marriage acceptability in India. India should take the worldwide movement for LGBTQ+ rights seriously and work towards achieving equality and inclusion for all people, regardless of their sexual orientation or gender identity. In order to create a society that preserves these ideals, we must endeavour to treat everyone with respect and fairness.
Bibliography
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