In a landmark decision in 2018, the Supreme Court of India decriminalised homosexuality by striking down Section 377 of the Indian Penal Code. Despite the 2018 verdict, members of India’s lesbian, gay, bisexual, transgender queer and more (LGBTQ+) community worry about societal rejection and discrimination against LGBTQ+ individuals. Legal rights for LGBTQ individuals in India have grown over the last decade, with the majority of these developments brought about by the Supreme Court’s intervention. The Supreme Court of India began hearing petitions seeking the legalisation of same-sex marriage on April 18, 2023. The question that has come up for the debate on marriage equality is whether same sex marriage is an ‘urban elitist concept’ or integral right in comparison to other rights enshrined in the Indian Constitution.

Q. WHAT IS CENTRE’S ARGUMENT ON SAME-SEX MARRIAGE?

“The Centre’s fundamental argument is that same-sex marriage is not recognised in Indian traditions, ethos, culture, or societal conceptions of the institution of marriage”

·   The Union government has adopted a position against same-sex marriage, arguing that such a decision belongs to Parliament and not the judiciary and that the petition represented urban elitist attitudes and would not be supported by the majority of people. One cannot assert that the legal establishment of a new social institution like same-sex marriage is a question of right. The holy union of marriage between a biological man and woman in India is threatened because the Parliament, not the courts, must make decisions regarding same-sex unions.

·    The Centre’s fundamental argument is that same-sex marriage is not recognised in Indian traditions, ethos, culture, or societal conceptions of the institution of marriage. Marriage, it has been suggested, is a sacrament between a biological male and a biological female to make a holy union in order to have children. As a result, it is contended that Parliament, rather than the Court, is the appropriate institution to debate and decide whether same-sex marriages should be legalized

·      Tushar Mehta, India’s Solicitor General, argued that the state has a legitimate interest in regulating marriages, citing factors such as the age of consent, prohibition of bigamy, prescription of prohibited degrees of marriage (which means one cannot marry their lineal ascendants, such as parents or grandparents), judicial separation, and divorce. Mehta also foresaw a future in which arguments about sexual orientation freedom and autonomy could be used to challenge the law on incest.

·        According to the Centre, ‘creation or recognition of a new social institution cannot be claimed as a matter of right or choice, much less a fundamental right. The right to personal autonomy does not include the right to have same-sex marriage recognised. The court would rule solely on petitions containing elitist views, whereas the legislature would consider the broader views and voices of the rural, semi-rural, and urban populations, religious denominations, personal laws and customs, and the impact of same-sex unions on other marriage laws. The existing concept of marriage as a diverse institution is protected by law and religion. Legalising same-sex marriage will significantly affect the interests of every citizen.’

·    As per the Union Government, The Transgender Persons (Protection of Rights) Act, 2019, has already safeguarded fundamental rights such as the right to privacy and the right to choose one’s sexual orientation. The establishment of additional rights, the acknowledgment of relationships, and the provision of legal legitimacy for said relationships can only be carried out by a competent legislative body rather than through judicial decision-making. Marriage is widely regarded as a crucial component of a nation’s social policy on a global scale. The responsibility of defining, recognising, and regulating same-sex marriage falls within the jurisdiction of the appropriate legislature, which is composed of elected representatives of the people. The decision not to recognise same-sex marriage is merely a reflection of legislative policy.

Q. WHAT DOES THE LQBTQ+ COMMUNITY WANT?

·       According to Senior Advocate SaurabhKirpal, an overwhelming 99% of same-sex couples want to tie the knot. They believe tying the knot will give their relationship significance, direction, and a distinct sense of self. Once upon a time, they said, they were deemed as lawbreakers. One speaker described their experience as that of “third-class citizens” According to some individuals, there is a common belief that they are “inferior citizens” and hence should be satisfied with their status.

·   In a recent court hearing, Senior Advocate MukulRohatgi presented arguments on behalf of the LGBTQ+ petitioners, stating that the right to marriage for non-heterosexual couples is implied in Articles 14, 15, 16, 19, and 21. Rohatgi further emphasised that this right is particularly significant in light of the Supreme Court’s previous rulings in the cases of Navtej Singh Johar vs. Union of India and KS Puttaswamy and Anr. vs. Union of India. In the wake of the historic ruling in N. S. JoharOrs. V. UOI, which invalidated Sec. 377 of the IPC insofar as it criminalises consensual same-sex relations, there is growing momentum to apply the principles of transformative constitutionalism and progressive realisation to expand the rights of LGBTQ+ individuals. Advocates argue that recognising same-sex marriages under the law would be a crucial step in this direction, giving LGBTQ+ couples a new dimension of legal recognition and protection.

·     Same-sex couples and LGBTQ+ activists are making a case that the government’s refusal to acknowledge same-sex marriage is a violation of the Constitutional right to equality and the privileges that married heterosexual couples enjoy. According to senior advocate MenakaGuruswamy, the notion of same-sex marriage is not limited to the elite. It also addresses numerous small towns. Marriage is a highly sought-after goal among youth in that region, and the plea is to spare them the ordeal. She pleaded for a positive implementation of the right to marry. Gay couples and LGBTQ+ activists are claiming that the government’s refusal to acknowledge same-sex marriage is a violation of the constitutional right to equality and the privileges that married heterosexual couples enjoy.

·     Advocate ArundhatiKatju, MenakaGuruswamy, and GovindManoharan have argued that the failure to recognise same-sex marriage constitutes discrimination that undermines the dignity and self-fulfilment of LGBTQ+ couples. During the court proceedings, it was emphasised that individuals who identify as LGBTQ+ make up approximately 7-8% of the country’s population. Petitioners have highlighted that LGBTQ+ citizens are not afforded legal protection under approximately 15 laws that guarantee rights such as wages, gratuities, adoption, surrogacy, and more.

Q. How Supreme Court Responded on Same-Sex Marriage?

·     According to the Supreme Court of India, same-sex marriages cannot be considered an urban elitist concept simply because more people from cities are coming out of the closet. According to the CJI, there is no absolute concept of a man or a woman at all. The postulation is far more complex than categorising a person according to the genitals they are born with. CJI Chandrachud said the matter might be tackled on three levels:

o   One, the government could easily make administrative modifications.

o   Two, by modifying subordinate legislation such as rules and regulations, which were also within the purview of the government.

o   Three, by enacting substantial legislative changes to formally recognise the right of same-sex couples to marry by gender neutralizing the Special Marriage Act.

Q. WHAT ARE THE ARGUMENTS FOR SAME-SEX MARRIAGES ?

·      Advocates of marriage equality contend that the principle of equal rights necessitates parity in all respects. In a just and equitable society, discrimination based on race, religion, gender, or sexual orientation is unacceptable, and the withholding of marriage rights constitutes a blatant form of such discrimination. Both gay and heterosexual couples should be entitled to the legal rights that come with marriage, including those related to taxes, property ownership, inheritance, and adoption. The act of denying equal rights to individuals who identify as gay or lesbian can be classified as homophobia, regardless of any attempts to justify or disguise it.

·       Article 21 of the Indian Constitution says that the right to get married is part of the right to life. The Human Rights Charter says that the right to get married is part of the right to start a family. Advocates of marriage equality say the right to marry is a right that everyone has, no matter what gender they are. Marriage is considered a long-term bond that lets two people find other freedoms together, like the freedom to express themselves, be close to each other, and grow spiritually. This is true for everyone, no matter how they identify sexually, they say.

·     Article 21 of the Constitution says that everyone has the right to life. Denying someone the right to choose a life partner on their own terms is a clear abuse of this right. Since the right to choose a partner is guaranteed by the Constitution for LGBTQ+ people as well, not recognising same-sex marriage goes against the right to life and personal freedom in Article 21 of the Constitution, they argue Like decisions about birth control, family ties, having children, and raising them, which are all protected by the Constitution, decisions about marriage are some of the most personal a person can make. So, it is very unfair to take away the most basic freedom of getting married to the person of one’s choice, they argue. Because same-sex marriage is not recognised, LGBTQ+ people are denied the rights that come with a legal marriage, such as the right to adopt, receive, and be taken care of.

·    Since same-sex weddings are not supported by law, many couples say they have had to deal with a lot of problems. Indian law makes it hard for LGBTQ+ people to own or transfer property. Gay and lesbian couples are not allowed to use an Indian surrogate mother to have children. And people who are LGBTQ+ can only try to adopt as single parents. Many same-sex partners think that legalising same-sex marriage would not only be a big step towards equality, but that it would also lead to more gay people coming out.

·      The Delhi Commission for Protection of Child Rights (DCPCR) said that same-sex couples would be just as good parents as straight parents to children raised by them. By making gay marriages illegal, the state is denying the child the legal protection of having two parents and a guardian.

Q. WHAT ARE ARGUMENTS AGAINST SAME-SEX MARRIAGES?

·     Critics say that marriage is described as the union of a man and a woman, and that changing that would go against natural law and threaten both the institution of marriage and the family’s role in keeping society together. Gay people can have civil unions, but marriage is a step too far, they argue.

·     According to them, talking about equal rights in this situation makes no sense. If that were true, then polygamy and marriages between relatives would also have to be allowed, they argue. Every right has some limits. If homosexuality was made legal, it would be another step towards being accepted by most people, they argue. No one can stop gay people from loving each other or living in relationships, but, according to them, that doesn’t mean they can get married.

·       According to Sara McLanahan, who was a sociologist at Princeton University, homosexuality could raise a class of children who live apart from their mother or father. A similar concept is expressed in David Popenoe’s book ‘Life Without Father’ If same-sex civil marriage becomes more popular, lesbian couples are more likely to end up with children, it argues, elaborating that fathers are effective at reducing antisocial behaviour and delinquency in boys and sexual activity in females. Eleanor MacCoby, a Stanford psychologist, wrote in her book The Two Sexes-Although the research on child outcomes is limited, it appears that children raised by lesbians or homosexual men are more likely to develop gender and sexual abnormalities.

·       Unlike its Delhi equivalent, the National Commission for Protection of Child Rights (NCPCR) stated that same-sex marriage would violate the terms of the Juvenile Justice Act. The Juvenile Justice Act of 2015 makes it illegal for a single male, let alone two men, to adopt a girl child. The NCPCR cited a study from the Catholic University of America that found that children of same-sex couples had twice as many emotional issues than children of heterogeneous parents. It argued that a proper legislative system regarding same-sex couples must be adopted.

·       Many religious organisations and non-governmental organisations say that Indian society is not ready for such weddings to be legalised. Their explanations range from the concept of “marriage” to the “psychological impact” on children of growing up with two men or two women as parents.

·      Marriages in India are governed by a complicated legal structure with a religious foundation. As a result, they are controlled under the Hindu Marriage Act of 1955, the Parsi Marriage and Divorce Act of 1936, the Christian Marriage and Divorce Act of 1957, and Muslim Personal Laws, all of which lack a rigorous statutory framework. Except for the Special Marriage Act (SMA) of 1954, all marriage laws recognise marriages between a man and a woman. SMA was enacted by Parliament to facilitate inter-religious marriages. As a result, the legislative intent behind the use of gender-neutral wording in Section 4 of the SMA cannot be assumed to be in favour of same-sex marriages.

·     Traditional family and marriage concepts are experiencing evolutionary challenges. Rajiv Mehrishi in his article, “Same-sex marriage and liberal elite’s conceit: Parliament must decide on the issue”  says that in the opinion of many, Indian society at large sees marriage as a solemn union of opposite sexes, with the likelihood of procreation, limited by choice or medical issues. ‘No survey or opinion poll is necessary to determine this. The elected representatives are in touch with and responsive to what people feel, otherwise, they would not be elected. They, more than anyone else in the country, know the pulse of the people. If society at large had felt strongly about same-sex marriage, no politician would dare oppose it.

·    There are several laws enacted in the recent past that reflect a demand from society: The tightening of rape laws post the Delhi 2012 rape, for example. For any group, no matter how liberal they imagine themselves to be, to think that they know better than all others, is righteousness at its worst. Maybe rural and small-town India think and feel differently. Unfortunately, holding the beliefs and feelings of an overwhelming majority in contempt, valorising it as intellectual superiority, seems to have become the forte of the “liberal” elite. The demand for recognising same-sex marriage cannot be dismissed out of hand but neither can be the view that is opposed to it. Let everyone be entitled to their views. Let us respect our Constitution and let Parliament and legislatures debate and decide on the issue.