India thrives on its constitutional morality through compassionate laws that nurtures the very existence of a human being in the form of fundamental rights enshrined under Part III of its Constitution.
Fundamental rights not only form part of the basic structure of the Constitution but also drives the very spirit of the nation and from instances like Maneka Gandhi v Union of India whereby the apex court expanded the interpretation of Article 21 bestowing it a pedestal where it cannot be subdued by any power or in the case of National Legal Services Authority v Union of India where ‘Third gender’ status of Hijras, eunuchs accompanied by their right to declare their self-identified gender was recognized by the court or to account for the recent order passed in Budhadev Karmaskar v State of West Bengal, where the apex court upheld various legal and fundamental rights of sex-workers, the eminent Judiciary of India has time and again provided protection to the fundamental rights as its guardian and has valiantly discarded moral notions embedded in the cultural set-up of the Indian society.
One such historic instance where the judiciary upheld the essence of Part III of the Constitution remains to be decision rendered by the five-judge bench of the Supreme Court in Navtej Singh Johar v. Union of India which read down the draconian part of sec 377 of the Indian Penal Code, 1860 insofar as it criminalized consensual acts of intimacy between adults of whatever sexual orientation and gender. The judgment stood against the conservative perspective which abhorred the existence of the LGBTQIA+ community. The orthodox viewed intimacy and sex as a tool only meant for the procreation and continuation of one’s lineage but with the passage of time, society has evolved where procreation is not the only reason for which people indulge in coitus, come together or marry.
And even where the courts have decriminalized acts between consenting adults of the LGBTQIA+ community, their union has not been granted the legal status till today which is a yet another milestone for India to achieve. Almost 31 countries in the world including UK, USA, Australia etc., have legalised the solemnization of same-sex marriage but India is still left to make the list as of now. Same-sex marriage in India is a debated controversy where the government has time and again shown its reluctancy in providing a legal status to the same whereas courts on the other hand have vehemently upheld that the minor community of LGBTQIA+ are entitled to same rights as granted to other people but at the same time has not addressed the issue in its entirety.
Navtej Singh Johar Case – A look at history
The central issue of the case revolved around the constitutionality of Section 377 of the Indian Penal Code, 1860 which criminalised carnal intercourse against the order of nature insofar as it applied to the acts of consenting adults of the same sex.
Navtej Singh Johar had filed a writ petition before the Apex court in 2016 under Article 32 of the Constitution seeking the recognition of sexual autonomy, right to sexuality and right to the choice of a partner on the grounds that sec 377 violated Article 14 which guarantees equality before law as it did not define the phrase ‘against the order of nature’ which discriminated the LGBTQIA+ community based on their sexual orientation and choice of life. Furthermore, it was argued that sec 377 stood in the way of their right to freedom of speech and expression enshrined under Article 19(1)(a) and also violated their dignified way of life which is the essence of Article 21.
The petitioner laid a land of arguments talking about how the LGBTQIA+ community have suffered and have lived in fear of being abused by police officials for something that is intrinsic to their being and consists of an important part of their identity. The initial case of Naz foundation v Govt. (NCT of Delhi) had previously struck down sec 377 as unconstitutional but the two-bench decision of the Delhi High court was reversed by the judgment of Suresh Kumar Koushal v Naz Foundation wherein the Supreme Court opined that sec 377 would apply irrespective of age and consent depending on a certain set of circumstances in which the act is being executed. The court further observed that those who indulge in carnal intercourse in the ordinary course are different from people who indulge in carnal intercourse against the order of nature. The following distinction of the court was found to be irrational and arbitrary in nature.
J. Chandrachud in his opinion argued that sexual orientation is integral to the identity of the members of the LGBTQIA+ community which is intrinsic to their identity and cannot be separated from their autonomy. Therefore, section 377 of the Indian Penal Code, 1860 which was read down insofar as it criminalized the acts between consenting adults of same sex and the right to sexuality along with freedom to choose a sexual partner of one’s choice was recognized by the five-judge bench of the court through a unanimous decision whereby it was further provided that the consent should be free and the person consenting such act should be competent to do so.
Problems faced by LGBTQIA+
Marriage is an ancient institution and has acquired a definitive place in the social structure of the society since its existence whereby marriage is often linked with continuing one’s generation or for extending one’s family but with the progress of time and mankind, procreation is not the only factor for which people marry.
Factors like emotional companionship, a sense of fulfilment and the idea of sharing one’s life with another have taken their own distinctive place in the psychology of marriage. Where history owes apology to the LGBTQIA+ community for the delayed redressal of their problems, India has to pave a long way for it to recognize the legal status of same-sex marriage. It has been held by the Indian Judiciary time and again that right to marry is a fundamental right whereby it is also a person’s inherent right to choose his/her partner but this right has been long overdue to the people belonging to the LGBTQIA+ community which not only violates their right to life under Article 21 but also discriminates their right to marriage based on their sexual orientation which is in direct violation of their right under Article 14 of the Constitution.
The LGBTQIA+ community is not only denied social acceptance but they also face various legal and financial issues owing to the legitimacy of their union. A same-sex couple can only adopt a child in their individual capacity and not together because the law does not recognize the same. How can we expect these couples to live the life with normalcy where they can only adopt in an individual capacity whereby all the rights, duties and guardianship of the adopted child would only rest with the adoptive parent and not his/her partner? Another big hurdle remains to be the legitimacy of a child born to a couple of same-sex through assisted reproductive technique. Not only the child will be illegitimate but he/she will have no property rights or inheritance rights of the other partner which calls for the effective enactment of a law. Furthermore, same-sex couples are denied joint bank accounts as no legal documentation is there to prove their union.
Same-sex Marriage – Current position in India
India comprises the majority of Hindus where marriage is a sacred union and also a matter of honour. India is a place of diversity where people live by their cultural norms and cherish their traditional values.
People’s way of preserving their culture sometimes takes the shape of conservatism whereby they choose ignorance over evolution with time and the LGBTQIA+ community has been a victim of the social stare down since centuries where they have lived in fear of being caught of their real identity. And even after being granted the right to sexual autonomy and choice of companionship, the community is still side lined based on their sexual orientation.
Recently an NCP MP Supriya Sule introduced a private member bill that proposes to amend the Special Marriage Act, 1954 to solemnize same-sex marriages in India.
The bill proposes to fix the age of marriage at 21 for a couple where both parties are male and 18 where the parties are female and also proposes to replace the words ‘husband’ & ‘wife’ with ‘spouse’. While introducing the bill in Lok Sabha, Supriya Sule highlighted the degraded plight of LGBTQIA+ community and how they still faced social persecution and discrimination. Underlining the legal issues involved owing to the lack of legalization of same-sex marriage, Sule argued that denial of right to marriage in turn denies them a normal life where they can have a normal family of their own, which ultimately denies them their fundamental rights enshrined under Part III of the Constitution of India.
A private member Bill rarely sees light of the day and at the same time legal position of India is not stable enough to accommodate the recognition of same-sex marriage as it will create anomalies in the legal dynamics of marriage, succession, maintenance and pensions etc. Even if same-sex marriage was to be legalized, issues of solemnization of such marriage have to be regulated keeping in view the facets of divorce, alimony and maintenance which are complex factors to be considered while enabling a probable legislation. Ground work has to be done to lift the over loaded burden of Indian law related to marriage and divorce of parties to a marriage for the effective enactment of a law that recognises same-sex marriages.
Marriage is a union of two souls and most of all a sacred unification of duties and rights towards one another.
In a country like India, mere recognition of same-sex companionship won’t be enough to eradicate the social stigma attached to the LGBTQIA+ community. Furthermore, issues faced by couples of the community related to issuance of a joint bank account, adoption, legitimacy of a child born through assisted reproductive techniques account for the rising need for the recognition of same-sex marriages in India. And even if a lot of work has to be put in by the lawmakers to solve the dilemmas that rise around same-sex marriage like alimony and maintenance, it is high time LGBTQIA+ community is granted their right to marry and have a normal life of honour and dignity. Social changes are hard to comply with but enactment of laws to abolish irrational discrimination always paves a way for the society to evolve.
--  Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461  Maneka Gandhi v Union of India AIR 1978 SC 597  National Legal Services Authority v Union of India 2014 SCC OnLine SC 328  Budhadev Karmaskar v State of West Bengal 2022 SCC OnLine SC 704  Navtej Singh Johar v Union of India (2018) 10 SCC 1  Human Rights Campaign, https://www.hrc.org/resources/marriage-equality-around-the-world (Last visited on 23rd June, 2022)  supra  Naz foundation v Govt. (NCT of Delhi) 2009 SCC OnLine Del 1762  Suresh Kumar Koushal v Naz Foundation (2014) 1 SCC 1  Lata Singh v. State of Uttar Pradesh AIR 2006 SC 2522
This article is written by Isha of Symbiosis Law School, Nagpur.