Open Access Research Article
SAME SEX MARRIAGE: FROM A SOCIO-LEGAL PERSPECTIVE
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Article Details
SAME SEX MARRIAGE: FROM A SOCIO-LEGAL
PERSPECTIVE
Authors- 1.Chestha
Pursuing Master’s in Law
2. Kunal Mann
Law Graduate [BBA.LL.B (Hons.)]
ABSTRACT
The concept
of same-sex relationships has been facing major challenges and numerous
dissenting opinions in India, while voices are being raised for its
legalisation there are dissenting voices as well. However, upon critically
examining the various ancient Indian texts and scriptures, that have
consistently proved to carry on their relevance even at present modern times, reveal
a more progressive approach which is much broader and equitable than the one
created during and post-colonial India. The introduction of criminal punishment
for same-sex relationships was owing to the British who drafted the Indian
Penal Code. Section 377 criminalised such relationships with imprisonment and
fine, thereby creating a hostile environment for such people. Various movements
against the discrimination took place globally and our nation also faced a
similar uprising. The law of India after independence has undergone numerous
transformations as per the need of the society and of course due to the work of
legislature and judiciary respectively. However, the topics of queerness, same
sex marriage and allied rights were not paid attention to and it was finally
with the landmark decision by the Hon’ble Supreme Court in the Navtej Johar
case that the same-sex relationships were no longer considered to be unnatural
and were decriminalised and also with the privacy judgement, a significant and
a strong foundation was laid down for the community in order to advance towards
their rights and identity in the nation as an equal. However, it was not
sufficient for the community as they were fighting for something much bigger
and beyond. Finally in 2023, one of the most awaited judgement was passed by
the Supreme Court regarding same sex marriage, the concept of queerness and all
matters connected therewith. In this article, we are going to look through the
entire journey of this movement, the transformation of its legal status from
the past till present including all the relevant judgements, steps taken by the
legislature and a significant light will be thrown upon the opinions of both
the sides in this regard.
Keywords: Queer, Same-sex
marriage, Transgender, Human rights, LGBTQ+ community, Homosexuality.
INTRODUCTION
Marriages that take place between two
persons of same gender or same sex is referred to as same-sex marriages, which
currently do not occupy a legal position in the domain of Indian legal
jurisprudence. However, this legal position has evolved significantly over time
with the development of law and also owing to the constant efforts being made
in this direction by various human rights activists and the LGBTQ+ community as
well. One of the major developments in this regard was the
decriminalisation of consensual intercourse between two persons of same sex
which was earlier considered to be "unnatural"
and punishable by law. This posed a major hurdle for any discussion about
same-sex marriage. Such a historic ruling was given by the hon’ble Supreme
Court in the case Navtej Singh Johar v. Union
of India[1] which marked
a turning point in the nation's persepective towards LGBTQ+ rights as it has
recognised the intrinsic character of the sexual orientation of an individual
which is in line with the Constitutional principles and mandates, that is,
equality before the law, protection of fundamental rights and dignity of the
people which equally involves the rights and dignity of LGBTQ+ community as
well. It is undoubtedly a progressive step in a positive direction but numbers
of issues continue to exist and hence the legal recognition of same-sex
marriage remains a topic of debate and discussion in India.
However,
this has turned out to be mere progessive but not a sufficient step to answer
the cause for the same sex couples and LGBTQ+ community. It is for this reason
that people, mainly LGBTQ+ rights activists, are still fighting for equal
rights and advocating for marriage equality through active campaigning for
legal recognition of same sex marriages, highlighting relevance and importance
of love, affection and commitment to one another irrespective of gender they
possess.
A number
of petitions have been filed for the Constitutional recognition of right to
marriage for same sex couples. It is not something against or contrary to the
Constitution rather it is something which is implicit in the constitution per
se. Hence these cases and petitions aim to push for the protection of equal
rights and ensuring the guarantee of equal treatment by recognising same sex
marriages and also to make provisions for the purpose of adoption, inheritance
or any other matter incidental or connected thereto.
Moreover,
the society is starting to accept the same sex marriage as a valid, legal and
rightful marriage, which evidently shows a changing attitude of the society
towards homosexuality. Although, a significant segment of society is not
accepting it and hence it creates a hurdle in legalising the same. But the
change has started to begin and it has fostered hope for the progression of
rights of the said community.
CURRENT LEGAL STATUS OF SAME-SEX MARRIAGE
Section
377 of IPC[2] talks
about unnatural offences and as we know it was the work of the British
government during the pre-independence era and it was in the year 2018 that the
sexual intercourse between the two persons of same sex was put out of the scope
and ambit of 'unnatural' under Section 377.
Let us
go through the social and legal development in relation to queer couples and
LGBTQ+ community by discussing some landmark judgement and their impact on the
society:
In this case, an NGO,
Naz foundation, along with lawyers collectively had filed a petition before the
Delhi High Court challenging the Constitutional validity of Section 377 of the
Indian Penal Code, 1860. They argued that Section 377 is violative of
Fundamental Rights provided under the constitution such as right to life and
liberty, right to privacy and dignity, right to health, right to equality and
freedom of expression.
The court held that the
section 377 of IPC imposed unreasonable restriction over the two adults who are
having consensual intercourse in private and hence it is violative of basic
fundamental rights provided under Article 14, 15, 19 and 21 of the Indian
Constitution.
After the judgement
passed by the Delhi High Court, people went to the Supreme court to reconsider
the constitutionality of Section 377 as they rejected the idea of
decriminalizing homosexual relationships.
The court held that
LGBT+ persons constituted a 'minuscule minority' and therefore they didn't
deserve constitutional protection and hence the Supreme Court re-criminalised
homosexuality.
This judgement of the
Supreme Court faced immense criticism as a result of which the public discourse
about LGBT rights witnessed an upsurge in India.
As
we know transgender community has never been considered as a part of society
and has always been subjected to exploitation, humiliation and violence either
by society or by the authorities in power. The constant rejection and not
having access to resources, these people often resort to beggary or
prostitution, making them more vulnerable to discrimination, STDs and crimes
such as human trafficking. But the 2014 Judgement of the Supreme Court brought in
a new ray of hope for transgender people as for the first time in history they
were recognised as the third gender.
In
this case, the issue before the honourable Supreme Court was whether there was
a need to recognise the hijra and transgender community as a third gender for
the purposes of employment, education, public health, reservation and other
welfare schemes.
The
Supreme Court in this case created the 'third gender' status for the hijras and
transgenders. Now they could proudly identify themselves as transgender because
earlier they were forced to describe themselves as either male or female.
The
court further stated that non- recognition of identities of these people was a
violation of fundamental rights under Article 14, 15, 16 and 21 of the constitution.
The
Supreme Court further directed the govt. to put the members of 'third gender'
under the category of "economically and socially backward
class". Moreover the court also
pointed out that the conflict between birth gender and identity of an individual
cannot essentially be termed as a pathological condition and therefore the
focus should be upon "resolving distress over a a mismatch" and not
"treatment of abnormality".
Following
this judgment, transgender individuals now have the right to legally change
their gender without needing to undergo surgery. They also have the
constitutional right to identify and register themselves as a third gender.
Apart from this, various state governments took small steps to benefit the
transgender population by making policies of health and housing.
This
judgement is popularly known as Aadhar judgement and it also dealt with the
concept of Right to Privacy as it was observed by Justice DY Chandrachud that
the sexual orientation of an individual falls within the wide amibit of right
to privacy implicit under Article 21 of the Constitution. This ruling upon the
right to privacy being an inherent fundamental right and the fact that the
court has considered sexual orientation of an individual within the same, has
given rise to essence of hope and achievement amongst the queer community as it
was the progressive step towards recognition of their rights, privacy and it
was also believed that sexual intercourse between same sex couple will come out
of the ambit of Section 377.
This
judgement was delivered on 6th September 2018, and it was a unanimous decision
wherein section 377 was held to be unconstitutional as far as consensual intercourse
between the same-sex is concerned. It was observed that it infringes the
intimacy, autonomy, identity, dignity and privacy of an individual. The court
also opined that this provision does not create a well established intelligible
differentia as to what is natural and what is unnatural, thereby labelling it
to be a vague provision as it also curbs the freedom of expressing an
individual sexual identity which is protected under Article 19. The court also
held that sexual orientation being an inherent part of self identity and
privacy is also protected under Article 21 that is right to life whereby
excluding consensual intercourse between two homosexual individuals from the
ambit of Section 377. The court also criticised the koushal judgement as it was
arbitrary, unreasonable and unconstitutional and denying thr right to such
community on the basis of them being a minuscule section of population is not
justified.
Transgender Persons
(Protection of Rights) Act, 2019
On July 2019 a bill was introduced in the House of
the people that is lower house of the parliament by the former minister of
social justice and empowerment Mr.Thawar Chand Gehlot. The motive was the
recognition, defining the identity and protection of rights of transgender
persons including their healthcare benefits and social welfare. The bill also
dealt with prohibition of discrimination against transgender persons especially
related to education, employment, unfair treatment, etc. It was on August 5, 2019
that the bill was passed by the house of the people and thereafter passed by
the Council of minister that is upper house of the parliament on November 26,
2019. The bill got it presidential assent on December 5th, 2019 and as per
Section 1(3) the implementation of the bill was to be done by the Central govt.
via the notification in the official gazette. The Act came into force January
10, 2020, vide notification no. S.O.135 (E). The Transgender Persons
(Protection of Rights) Act, 2019 consists of 9 chapters incorporating 23
sections which deals extensively with the provisions related to prohibition
against discrimination, recognition of their identity, obligation of
establishment and appropriate government, formulation of national council,
penalising the offender who acts against the principles of this Act, sepcial
provisions for education, social security, health and all matters connected
therewith and incidental thereto.
The
Act of 2019 is a just and equitable step towards the rights of transgender as it
furthers the fundamental principles of the Constitution as laid down Article
14, 15, 16 and 21.
The latest Legal
development in this aspect can be traced to the Judgement of the honorable
Supreme Court in the case of Supriya Chakraborty & Anr.
v. Union of India 2023[8] through
a 5 judge bench. The 2 gay couples had filed the petition in the Supreme Court
seeking the recognition of same-sex marriage and other connected rights of
queer couples. It is a very elaborate judgement which deals with power of the court,
the ambit of Article 32, judicial review and separation of powers, the role of
courts in a democratic process, about the depth of the concept of queerness,
understanding the institution of marriage and the rights of queer persons to
marry, right of transgender persons to marry, their right to adoption,
maintenance and to form a union, etc.
The
court has held that the natural phenomena of the queerness are known to India
since ancient times and it cannot be said to be an urban concept. The Supreme
Court also realised that the laws related to recognition and regulation of
queer marriages lie within the domain of legislature, be if the parliament or
state legislature under Article 245 and 246 read with entry 5 lists 3 of 7th
schedule of the Constitution. It was also observed tha the unmarried couples
including queer couples can jointly adopt the child and the regulation of 5(3)
of adoption regulations has been held to be ultra vires the JJ Act and Article
14 and 15 of the constitution. The Supreme court also recognised the right to
prohibition of discrimination against the freedom of queer couples and their
right to enter into union with benefits under law. The Supreme Court also
directed the union government to constitute a committee for the purpose of defining,
regulating and elucidating the scope of the entitlements of queer persons or
queer couple who have entered into unions. The Supreme has also passed certain
recommendations that are to be followed by the committee.
SAME-SEX MARRIAGE AND AN INDIAN PERSPECTIVE
In India, homosexuality
has always been considered as a taboo and people tend to overlook this matter.
Some people are hesitant to even discuss about this subject matter while some
have their disagreements with the same. The relationship between two persons of
same sex or gender is considered dysfunctional and unnatural, and also, prior
to 2018, it was considered as an offence even if it was consensual. However the
judicial viewpoint has been changed after the historic judgement of Navtej Singh Johar v.
Union of India[9]. But still there is a
lot to work upon in order to meet the ends of justice. Mere recognition of
consensual sex between two partners of same sex cannot be said to be answering
the cause for their fight to demand equal treatment and equal protection.
Due to customs, usages
and also due to the colonial rules and laws, the thinking with respect to
homosexuality had been quite narrow and arbitrary. But with the passage of
time, it is, however slowly, but surely changing and transforming into a much
broader and progress approach. It is very disheartening to see that parents
also tend to alter their views upon homosexuality and same sex marriage when it
comes to their own child, resorting to manipulation and mistreatment because
people still somewhat consider homosexuality as a sin and against their beliefs
and against the very nature of human existence.
Our ancient texts and
scriptures are proving to be of high relevance in almost every significant
aspect of human life and day to day dealings. All the newly discovered things
nowadays find their relevance and source from such ancient texts, even western
ideas drive their motivations with the help of these ancient Indian texts and
religious scriptures. They have proved to be of a very significant value. The
same is true for the present topic as well, for instance, the Rigveda in
Hinduism, the oldest written text traced in the history of mankind, states “Vikriti
Evam Prakriti”, that is, what seems to be unnatural is also natural[10].
It clearly suggests a very wide and progressive approach because there are no
limitations to the human imagination and progression. We should be welcoming of
every positive idea which we encounter and eliminate the evil or negative
thoughts from the society. Our constitution also talks about equality and
prohibits the discrimination on the basis of gender, sex, etc.
ARGUMENTS FOR SAME-SEX MARRIAGE
There are
several arguments in support of same-sex marriage, including
Human rights and Fundamental rights: The right
to marry a partner of one’s own choice is a fundamental human right, and
denying same-sex couples the very same right to marry a person of their choice
would be arbitrary and inequitable as it would lead to discrimination, thereby
violating the right to equality and equal treatment. Allowing the same-sex
marriage would not only promote the aforementioned fundamental right but also
bring a sense of harmony in the society as it will defeat the fear of unequal
treatment in the eyes of same sex couples. It is pertinent to note that
according to the Indian Constitution, discrimination on the basis of sex is
prohibited and therefore marriage equality would ensure that same-sex couples
have the same legal rights and protections as opposite-sex couples enjoy.
Legal protections: Marriage
is much above and beyond physical intimacy and mere decriminalisation of
consensual sex between two persons of identical sex can not be deemed
sufficient to answer the actual cause of equal rights of same sex couples.
Recognition of same sex marriage would provide better and effective legal
protection to such couples, such as the ability to make medical decisions for
each other and access to survivor benefits and moreover the benefits that only
family members can enjoy because marriage in a sense initiates a family as
well. Denying same-sex couples the ability to marry denies them all these legal
protections as have been discussed which would be unjust, unfair and
consequently defeat the purpose of law.
Social benefits: Marriage,
apart from its legal position, serves a social purpose as well, such as
stability, companionship, and support which is something that the same-sex
couples also deserve to enjoy and experience just like opposite-sex couples.
Moreover, the societal perceptions and position will change towards them
bringing about a sense of harmony and stability in the society.
Parenting rights: Same-sex
couples can not be adjudged incapable of raising children as it would affect
their dignity and will send a negative message in the society. They are just as
capable as opposite-sex couples. We have numerously seen a single parent
raising his/her children properly and effectively, no one questions their
authenticity, so what is the point of questioning same sex couples on the same
ground? Legalizing same-sex marriage would ensure the equal treatment of these
couples with respect to the parenting rights.
Religious freedom: Legalizing
same-sex marriage would not infringe the religious freedom, neither of those
who want to perform it nor who oppose it. Primarily such marriage are nowhere
seen to be going against the morals and ethics of any particular religion, but
still if it goes against the beliefs and mandates of any religion then it would
not be required to be performed by the religious institutions. Court marriages
is always an option, but at least there should be a beginning somewhere,
Consenting
adults: Marriage is known to be a sacred union or a contractual
union, depending upon the religious belief, between two consenting adults,
regardless of gender. If two people love each other and want to commit to
spending their lives together, they should have the right to do so regardless
of their gender.
Health benefits: Legalizing
same-sex marriage can have positive health benefits for same-sex couples. For
example, being married can reduce stress and improve mental health, which can
lead to better physical health outcomes.
Cultural significance: Marriage
plays a culturally significant role in the society which is valued by the
society at large. By denying same-sex couples the right to marry, they would
miss out on a very significant cultural aspect of life which is marriage and
the rights and protections that come along with it. Society, by denying, sends
a message that their relationships are less valued than opposite-sex
relationships which again goes against the very foundation of Indian law.
Tradition: There is a
constant argument that a marriage has always been a union between a man and a
woman but this is actually through the customs and usages which have prevailed
over time. But we must not forget that the very concept of marriage per se has
evolved throughout the history. We have seen a number of customs and usages of
evil nature which had prevailed over a large period of time and ultimately
struck down for the purpose of law and civilised society, for instance, sati
pratha, widow remarriage, triple talaq, dowry, etc. So same sex marriage cannot
be denied merely on the basis of some custom that has prevailed over time.
Marriage has been redefined to include interracial couples and divorced
individuals, therefore, allowing same-sex couples to marry would simply be another
evolution of the institution of marriage.
Support for families: Family
support is something which is essential in everyday life for everyone to live
happily and with dignity. Legalizing same-sex marriage can provide much-needed
support for families. For example, a same-sex spouse would have legal rights to
make medical decisions for their partner or be entitled to bereavement leave if
their partner dies.
Social progress: It would be
a landmark step forward for social progress of the country and for LGBTQ+
rights. It would send a message that all people, regardless of sexual
orientation or gender identity, deserve equal rights and opportunities.
ARGUMENTS AGAINST SAME-SEX MARRIAGE
Here are
some arguments against same-sex marriage
Tradition and morality: Marriage has been always a tradition
institution between men and a women and it has been deemed to be universal and
natural that a marriage is supposed to be taking place between a men and women.
Any other kind of marriage would defeat the very purpose of the marriage and
its scarmental values. It has been looked at in this way for centuries and the
people believe it in the manner it has always existed. Changing its nature
would create a hindrance and would defeat the tradition purpose and moral
values.
Religious beliefs: Some
religious segments of the society consider it to be against their religious
beliefs and are against the legalisation of the same. They consider it as the
destroyer of very essence of their religious belief, faith and ideas.
Procreation: A common
argument that prevails in the society is that naturally procreation occurs only
out of the procreation of the opposite genders that is same-sex couples are
incapable of giving birth to a child, has procreation is considered to be the
main purpose of marriage
Parenting concerns: It is
somewhat similar and connected to
the point of procreation that the children are raised naturally by a father and
a mother and same sex couples are incapable of providing the same to a child
which may lead to negative outcomes such as behavioral issues, inadequate
experiences, and lack of emotional support. People also argue that the children
raised by same sex couples would automatically tend to leave their natural
biological interest and will be tilted towards queerness not by choice rather
by way of their experiences with same sex parenting.
Slippery slope: It is also
another fear in the mind of people that legalising same sex marriage could
potentially give rise to other non traditional and unnatural relationship such
as marriage between siblings, polygamous marriage and so on
Legal concerns: Some
people believe that it will shake the societal conscience and interference in
the present existing laws would create legal and administrative complications
that will further create more problems rather than providing a solution.
However many of such arguments have been
widely debunked as many of these are simply illogical and have no legal
relevance, while some arguments are strong enough to restrict the legalisation
of the same sex marriages. It is worth noting that no legal steps can be taken
in the absence of an enactment as observed by the Supreme Court in Supriya Chakraborty
& Anr. vs. Union of India 2023[11].
RECOMMENDATIONS TO IMPROVE SAME-SEX
MARRIAGE STATUS
It has been
established that it is difficult for the courts to intervene in the present
subject matter in the absence of the legislation therefore the prime focus
should be upon enactment of a new law by the parliament, as parliament acts for
the people. It is the public who choose their representative to act on their
behalf for the betterment of the society. When a voice is raised, it is acted
upon by the appropriate government to answer the cause for the people. The
Supreme Court has also clearly established that it is not possible for them to
interfere in absence of legislation and it is within the domain of parliament
or the state legislatures only. The court can only help in the interpretation
of existing laws ensure that the laws are in line with constitutional values
and principles. Hence an effort to bring the change on the ground level of the
society should be made which can be done through spreading of knowledge,
awareness and adoption of a progessive approach. People must be educated about
the concept of queerness and its link with the ancient India. Our history has
proved to be much more progressive and purposive than what we tend to think of.
After so many invasion and the rules of the foreign powers our thinking has
been narrowed and we have, overtime, developed a superstitious notion and have
undervalued ourselves. It is only by spreading the awareness on the ground
level, our society will change, progress and will respond towards this issue
much more positively. A sense of harmony and coherence has to be built within
the society as it is only thereafter the government through its cotizen will
respond to the issue appropriately.
CONCLUSION
Same sex marriage in India is an
evolving issue and in recent years, it is progressing significantly as homosexuality
is no longer consider to be unnatural and has been decriminalised by the
honorable Supreme Court in the year 2018, however, same sex marriage is still
not legally recognised, though the honorable Supreme Court has directed the
union government to constitute a committee for the purpose of defining,
regulating and elucidating the scope of the entitlements of queer persons or
queer couple who have entered into unions. The Supreme Court has also passed
certain recommendations that are to be followed by the committee.
The Indian government and the society
are grappling with various religious perspectives and social cultural
surrounding with same sex marriage. Some
conservative voices argued against legalising same sex marriage as they
consider it grossly immoral and violative of custom and religious beliefs.
However, society is starting to accept the same sex marriage as a valid, legal
and rightful marriage which evidently shows a changing attitude of the society
towards homosexuality.
It is pertinent to note that mere
recognition of the same sex marriage is not sufficient rather the ultimate aim
is to ensure the protection of equal rights and inclusivity for the LGBTQ+
community in India as it reflects that fundamental rights are equally
guaranteed regardless of the sexual orientation of an individual.
The pursuit of legalizing same-sex
marriage in India is likely to involve further legal battles, societal debates
and advocacy efforts. It is crucial for the LGBTQ+ community and their allies
to continue to raise awareness amongst the people, challenge the discriminatory
laws, demand for a new legislation as observed by Supreme Court and further
promote understanding and acceptance in the society.
[1] Navtej
Singh Johar v. Union of India, A.I.R 2018 SC 4321
[2] Indian Penal Code,1860
[3] Naz Foundation Govt. v. NCT of Delhi, (2009), WP(C)
No. 7455/2001.
[5] National
Legal Services Authority v. Union of India (2014), writ petition (civil) No.
400 of 2012.
[6] Justice K.S. Puttaswamy v. Union of India (2017) 10
SCC1
[8]
Supriya Chakraborty &
Anr. vs. Union of India, 2023, writ petition(civil) No. 1011 of 2022
[10] Bipasha Chakraborty, Vikriti Evam Prakriti: What
Seems Unnatural, Is Natural, Honi Soit (Nov.6,2023, 5:06 PM),
https://honisoit.com/2021/10/vikriti-evam-prakriti-what-seems-unnatural-is-natural/
[11] Supriya Chakraborty & Anr. vs. Union of India, 2023, writ
petition(civil) No. 1011 of 2022
Article Information
SAME SEX MARRIAGE: FROM A SOCIO-LEGAL PERSPECTIVE
Authors: Chestha, Kunal Mann
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/11/16
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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