Same-Sex Marriage in India: A Comprehensive Overview

 

THE POSITION OF SAME-SEX MARRIAGE IN INDIA

Introduction

The case for legalising same-sex unions has been made in our nation's honourable courts numerous times. Even while many onlookers have labelled Indian society as regressive regarding the rights of the LGBTQIA+ community, the truth is that the society is changing, changing the nation's constitutional morality to reflect the social morality of the day. The purpose of this essay is to examine the legal status of same-sex marriage in India and the precedents that the esteemed Supreme Court has established in pertinent case laws. 

Tracing the decriminalisation of Section 377 of IPC

The Indian Penal Code, 1860, discusses unnatural offenses under Section 377. The text stipulates that an individual who engages in voluntary sexual relations against the natural order with a man, woman, or animal faces life imprisonment, or imprisonment of any kind for a maximum of ten years, along with a fine. Somehow, laws from the repressive Victorian era continued to exist into the twenty-first century, and homosexuality and same-sex relationships are still illegal in a number of countries. 

Naz Foundation v. Government of NCT Delhi, 2009, was a landmark lawsuit challenging the legality of S.377 of the IPC. In this instance, the Delhi High Court's two-judge panel declared that consensual gay relations between two adults is not illegal and decriminalized the behavior, calling it discriminatory. In the 2013 case of Suresh Kumar Koushal and Anr. v Naz Foundation and Ors., a division bench of the Supreme Court reversed this decision and reinstated section 377 of the IPC. Furthermore, it was decided that Parliament, not the Court, has the authority to decriminalize homosexuality. Furthermore, it said that the act's goal was to criminalize specific behaviors rather than groups of people. S. 377 of the IPC was decriminalized by the five-judge Supreme Court bench in the historic case of Navtej Singh Johar and Ors v. Union of India through the Secretary, Ministry of Law and Justice, 2018. Due to the act's discriminatory nature and violations of Article 14 and Article 15 of the fundamental rights, it was decriminalized. Additionally, it violated the rights to life, dignity, and autonomy as guaranteed by Article 21, as well as a violation of the right to free speech guaranteed by Article 19(1)(a). The 2018 ruling has remained in effect ever since, and the precedent it established is still being adhered to today. As a result, the Indian Penal Code's section 377 was declared to be no longer illegal by the Supreme Court, making it legal for two consenting adults of the same sex to have sexual relations.

Marital status of same-sex couples in India

The public's desire for greater recognition of the rights of queer people was sparked by the decision in the Navtej Singh Johar case law, which decriminalized section 377 in favor of the LGBTQIA+ community. The calls for the legalization of same-sex marriage in India sprang from this fervor. A seminal case on the subject has emerged in the most recent instance, Supriyo a.k.a. Supriya Chakraborty & Abhay Dhang v. Union of India thr. Its Secretary, Ministry of Law and Justice and other related cases, 2023. 

The legal status of same-sex marriage and the constitutionality of the Special Marriage Act of 1954 were at the center of these petitions. In a 3–2 decision on October 17, 2023, a five-judge panel declined to allow civil unions for homosexual couples. The ruling rejected the legalization of same-sex unions. The ruling rejected the legalization of same-sex unions. The judges were in agreement that there was no right to marry, but CJI D.Y. Chandrachud and Justice S.K. Kaul were part of the dissenting opinion, advocating for the right of queer couples to form civil unions. 

The CJI further stated that no part of the Special Marriage Act could be overturned by the court. It was also decided that the judiciary does not have the authority to invalidate any of the provisions of the Special Marriage Act or to interpret its language in a different way. Not the courts, but the Parliament is empowered to enact laws. The recognition of a civil union between non-heterosexual couples, according to Justice S.K. Kaul, would advance marriage equality. Each judge examined the assertions that homosexuality and queerness were not indigenous to India. 

Collectively, the bench maintained that queerness was not limited to a select few urban English-speaking elite communities. Because urban areas provide easy access to resources for their people—really, any person from anywhere in the world—it appears to be more prevalent there. 

"It is not queerness which is of foreign origin but the many shades of prejudice in India which are the remnants of a colonial past," said Chief Justice D.Y. Chandrachud. Non-heterosexual relationships have been a "integral part of Indian society," according to Justice S.K. Kaul. The majority concluded by holding that the legislature is in charge of enacting laws pertaining to same-sex marriage and the range of rights that accompany it, including adoption and succession. 

They also gave the Center instructions to update the policy and guarantee that LGBT people are treated equally.