Same Sex Marriage

Marriage between people of the same sex (i.e. between a man and man or between a woman and another woman) is not permitted in India. The Supreme Court in Supriyo v. Union of India case held that same-sex marriage can only be legalised by a law from the Parliament. Central government opposed legalisation of same sex marriage saying it is contrary to traditions and morality of the majority. A High Powered Committee with the Cabinet Secretary will be setup to see what rights can be provided to same-sex partners. These include recognition as next of kin for insurance, employment benefit, creating a joint bank account, jail visitation, medical decision making and inheritance purposes. Also Supreme Court gave directions to end discrimination against LGBTcommunity.

People from the LGBT (Lesbian, Gay, Bisexual, Trans) community have often faced discrimination in the society. Historically, people from this community were oppressed and considered as 'deviants'.Their lifestyle was considered unnatural and a threat to the social order. However, in recent years, their human rights are being recognised across the world. These rights include right to life, right to privacy, right to education and social welfare, right to work and even right to marry the person of their choice.

The Supreme Court of India (SC) is the highest court in India. The SC upholds rights of all individuals if they are violated by the State or other people. In its landmark decision in Navtej Johar Case (2018), SC recognised the rights of homosexual people and decriminalised sexual activities by them. This allowed LGBTQ people to live a dignified life in the public. However, they also wanted the right to marry a person of their choice. They petitioned the court in the Supriyo v. Union of India case for recognition of 'Same Sex Marriages'.

There is a lot of debate on whether same sex marriage should be allowed. LGBT rights activists have made arguments in favour of legalising same-sex/ queer marriage. However, this has been opposed by the Central Government, major political parties, religious organisations and some women's rights organisations as well.

• Human Rights:International recognition that human rights include right to marry a partner of one's choice as given inUniversal Declaration of Human Rights also.
• Constitutional Rights
  • Right to Equality under article 14 guarantees equal treatment to all. In Navtej Johar case, Supreme Court said that no one can be discriminated on the basis of their sexual orientation.
  • Right to Liberty, Freedom & Dignity: Supreme Court in Safin Jahan case states that Articles 19 and 21 include the right to choose one's partner.
  • Right to Privacy under article 21 recognises right to chose your partner as Supreme Court said in the Shakti Vahini case.
  • These constitutional rights are guaranteed to all citizens. LGBT people are hence being discriminated against.
• Historical Recognition in Religion: There is hisotrical evidence that Hindu religion recognised and respected LGBT people. This prohibition on marriage violates their right to freedom of practicing their religion (article 25).
• Worldwide Trend: Many countries across the world are progressively recognising same sex marriage e.g. USA, UK, Australia.
• Practical Necessity: Many privileges are given to married people in inheritance, insurance payouts and other laws in the country. However, queer partners will be left without economic safety net available to hetereosexual people.
• Adoption Rights:Adoptions are not recognised for homosexual couples. The law does not allow two fathers or mothers for a child.
• Marriage is a changing concept: It has not remained the same since its origin across history or across the world. E.g. in India, movements to recognise inter-caste and widow remarriage were done.
• Ending Taboo & Discrimination:More people are coming out in 'urban elite' spaces as gay because there is lesser taboo than in rural areas. This does not mean that only urban elites are LGBT. If protection can be provided for queer people even in rural areas, they will feel safe to comeout.
• Utilitarian View: Allowing same sex marriages improve happiness for people from the community without affecting anyone else. Hence, as per utilitarian principles it allows maximum happiness for the maximum number of people.

• Heterosexual Family as the Fundamental Unit of Society: It is the heterosexual family (meaning marriage between Man & Woman) which has been the pillar of society for centuries.Same sex marriage can disrupt societal fabric.
• Against tradition and religious norms: Marriage is considered a sacrament between man and woman in all religions. Society is not ready to accept homosexual marriages against their values. Bharatiya Janta Party, Indian National Congress and many regional parties oppose this on grounds of societal, cultural, religious, historical issues.
• Violation of Religious marriage laws: These laws recognise traditional customs and practices which are protected by the Secular constitution. Religious organisations like Sanatan Dharm Sabha, Jamiat Ulema-e-Hind and Telangana Markazi Shia Ulema Council all oppose same- sex marriages.
• Imposing Western Ideas: recognition of same sex marraige in the developed countries which have separation of state and church cannot be replicated in India. It is not acceptable to the popular majority of India and is against their morality.
• Legislative Challenges: There are numerous specialised laws currently which will have to undergo comprehensive changes-
  • Laws of Inheritance: current laws which regulate marriage are multiple (based on religion e.g. Hindu Marriag Act, Parsi Marriage & Divorce Act etc.) These laws have detailed laws of succession, inheritance etc. which are gendered.
  • Protective Legislation: Many laws have been passed in India to protect women from dowry demands, domestic violence etc. in marriage and secure maintenance rights for them. Challenges exist in making these applicable for homosexual couples.
  • Adoption:Juvenile Justice Act, 2015 prohibits adoption of girl child by single male.
• Imact on Child rearing: Some research has shown that children who grow up with same-sex parents have adaptive and social challenges (Elanaor MacCoby, Stanford psychologist). National Commission for Protection of Child Rights (NCPCR) states that their research shows twice as many emotional issues in children of homosexual couples.
• Unnatural: Traditionally marriage is for the purpose of procreation and same-sex couples cannot have children.

The primary contention before Supreme Court (SC) in the Supriyo case was whether SC has the power to legalise same sex marriage without a law from the Parliament. The debate is highlighted below:-

The Supreme Court's 5 judge bench in October 2023 unanimously held that No Constitutional Right To Marry exists. Marriage is an institution created by the State and recognised under law only. The judgment was written by 3 majority judges however there was a minority judgment by the Chief Justice of India also who said that some civil rights (like making joint bank account, joint health insurance etc) are a right of a queer couple also.

• Parliament in the correct forum: Judiciary has no power to make laws or ask the Parliament to make law. Only the Parliament can bring out comprehensive legislation for same-sex marriage.
• End discrimination against LGBT: SC reiterated that the discrimination on the basis of sexual orientation is prohibited in the Constitution and efforts should be made by the State to end discrimination.
• High Powered Committee:to be setup, headed by the Cabinet Secretary to examine the challenges faced by LGBT community. The committee will deliberate on providing some rights for LGBT couples like joint back accounts, recognition of queer partner as next of kin for medical emergencies, inheritance, employment benefits etc.
• Special Marriage Act Valid: It was held that Special Marriage Aact cannot be struck down on the grounds that it does not allow marriage for same sex couples. It is an important legisation which protects rights of inter-caste and inter-faith couples for marriage.
• Transgender Marriages Valid: between a trans man/ man and a trans woman/ woman under existing laws of marriage.

• Civil union rightsshould be recognised including employment benefits, joint account etc. for ease of partnership.
• Chief Justice of India noted that 'Same-sex marriage' is not an elitist concept.
• Protection from Natal family (meaning family at birth) to be given to queer people.
• Equality in access to goods and services.
• Public awareness, telephone helplines, safe houses & shelters
• Banning conversion therapy which aims to change orientation of queer people to 'straight'
• Mental health support specifically for queer people to prevent high instances of suicide and self-harm in the community.

Supreme Court in the Supriyo Case has stated that there is no right to marriage for LGBT community or anyone. Marriage is only statutorily recognised. However, there should be active efforts to end discrimination against LGBT community.

Justice Nariman in Navtej Johar case directed that sensitization of the public and the authorities is a must to end stigma and discrimination faced by LGBT people. Dialogue and mass broadcast are a great way to ensure the same. Greater involvement and visibility of queer people in public life and during policy making can ensure gender justice. They can be attached to Parliamentarian's offices also.

It is not enough that rights of queer people are recognised, there is also need for support and welfare as they are often abandoned by their natal families and face innumerable challenges in finding housing and jobs. Mental health, welfare and livelihood support is must for the community. Rehabilitation centres and shelters can also be envisaged. Horizontal reservations can also be recognised to increase their visibility. Finally, it is imperative on the Parliament to statutorily recognise rights for LGBT people with anti-discrimination laws and equal access to marriage.