India, like numerous other nations, struggles with the issue of same-sex marriage. While the LGBTQ+ community in India has advocated for the legalisation of same-sex marriage for a very long time, the Government is yet to do so. On March 13, a Supreme Court Bench headed by Chief Justice of India DY Chandrachud referred petitions for legal recognition of same-sex marriages to a Constitution Bench of five judges. The court has scheduled arguments from April 18.
The Centre has opposed the same-sex marriage and argued that judicial intervention will disrupt the delicate balance of personal laws. During this hearing, the Government filed a counter-affidavit through the learned Solicitor General Mr. Tushar Mehta stating on record that the decriminalisation of Section 377 IPC does not give rise to a claim to seek recognition for same-sex marriage. There was optimism that samesex marriages would be legalised after the KS Puttaswamy verdict (2017), w h i c h upheld the right to privacy, and the Navtej Singh Johar verdict (2018), which decriminalised homosexuality.
The Government argued that the ruling from 2018 cannot be interpreted to imply that there is a fundamental legal right under the laws of the country to marry someone of the same gender. The purpose of the existing legal framework for marriage was confined to the recognition of a legal relationship of marriage between a man and a woman, represented as a husband and wife. This was the only intention behind the current legal framework for marriage as per the Government.
The Government argued, in its affidavit submitted to the Supreme Court, that the very concept of marriage assumes a union between two people of different sexes. This meaning is ingrained in the very idea and concept of marriage, socially, culturally, and legally, and should not be disturbed or watered down by judicial interpretation as the Government has claimed that any change to the legal structure should be the domain of the elected Parliament.
Relying on Article 21’s protection of the right to life and liberty, the courts have repeatedly ruled in favour of inter-faith and inter-caste marriages, ordering police and other rights organisations to provide protection for those couples who were threatened by their parents or society.
Court’s earlier remarks
The court has earlier, in the Navtej Johar case, remarked that an individual’s autonomy, intimacy, and identity are protected fundamental rights and the state should not interfere with people’s personal choices.
The court’s statements come at a time when many countries around the world have already legalised same-sex marriage. In Asia, Taiwan became the first country to legalise same-sex marriage in 2019. Thailand followed suit, recognising same-sex partnerships in 2020. India, being one of the world’s largest democracies, faces a conundrum at this juncture.
In conclusion, the issue of samesex marriage in India is complex and polarising. While the Government has opposed recognising samesex marriages on prevailing cultural grounds, the recent deliberation by the Supreme Court leaves us to observe the eventual development of the law governing same sex marriage.