Same-Sex Marriage in India: A Review of Recent Supreme Court Judgments

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Introduction 

Same-sex marriage in India has been a topic of significant debate and discussion in recent years. India has made significant strides in recognizing the rights of LGBTQ+ individuals, including the decriminalization of same-sex relationships. Recently, the legal recognition of same-sex and queer marriages has turned out to be an important matter of discussion. The same was fully realized after the much-awaited judgment in Supriyo @ Supriya Chakraborty vs. Union of India was delivered by the Constitution bench of the Supreme Court. 

Before delving into the question ‘Why is same-sex marriage important?’ we have to understand the importance of granting rights to the LGBTQ+ community in India as well as the legal history of same-sex marriage in India. In 2018, the Supreme Court of India overturned a colonial-era law known as Section 377 of the Indian Penal Code, which criminalized consensual homosexual acts. This landmark judgment was a significant step forward in recognizing the dignity and rights of LGBTQ+ individuals. While this was a significant milestone, it didn't directly legalize same-sex marriage. India's marriage laws define marriage as a union between a man and a woman. Same-sex marriages are not explicitly recognized or protected by law. This lack of legal recognition denies same-sex couples access to essential rights and benefits that heterosexual couples enjoy, such as inheritance rights, property rights, adoption, and healthcare benefits. 

Legal challenges to same-sex marriage in India are beyond questions of law, they are in fact connected to our society, and religion and hence are 

taboo for a common Indian. This is the reason that same-sex marriage legality in India is an important question. On October 17, 2023, the Constitution bench of five judges gave an important judgment on the plea for marriage equality. In this article, a brief is provided regarding the judgment including the opinions of a five-judge bench and majority decision in relation to same-sex marriage recognition and rights of the LGBTQ+ community.

Recent Supreme Court Judgment on same-sex marriage in India

On October 17, 2023, the Constitution bench of India headed by Chief Justice of India DY Chandrachud, including others, Justice PS Narasimha, Justice S Ravindra Bhat, Justice Hima Kohli, and Justice Sanjay Kishan Kaul delivered the much-awaited judgment on the legal validation of same-sex marriages. This verdict includes four separate opinions running into 366 pages. The bench held that non-heterosexual couples cannot claim an unqualified right to marry with a 3:2 majority. All five judges agreed to the fact that ‘homosexuality is not urban or elite’ but disagreed on the point of whether to give the legal status of civil union or marriage to queer couples. All judges also agreed that it was up to Parliament to decide whether to expand marriage laws and include queer unions and stated that “This court can’t make law. It can only interpret it and give effect to it”. 

Parties Involved

Petitioners

Supriyo Chakraborty, Abhay Dang, Parth Phiroze, and Uday Raj Anand

Advocates appearing for Petitioners

Neeraj Kishan Kaul, Menaka Guruswamy, Jayna Kothari, Saurabh Kirpal, Arundhati Katju, Karuna Nundy, Priya Puri, Shristi Borthakur, and Mukul Rohatgi

Respondents

Union of India

Advocates appearing for respondents

Solicitor General Tushar Mehta, Attorney General R. Venkataramani, Senior Advocate Rakesh Dwivedi, and Senior Advocate Kapil Sibal

What were the reliefs sought in the petition?

During the Court proceedings, the following reliefs were sought by the petitioners:

• “LGBTQ persons have a right to marry a person of their choice regardless of religion, gender and sexual orientation; 
• The SMA (Special Marriage Act, 1954) is violative of Articles 14, 15, 19, 21, and 25 of the Constitution insofar as it does not provide for the solemnization of marriage between same-sex, gender non-conforming, or LGBTQ couples;
• The SMA applies to any two persons who seek to get married, regardless of their gender identity and sexual orientation; 
• The words “husband” and “wife” as well as any other gender-specific term in the SMA ought to be substituted by the word “party” or ‘spouse’”

Other questions that were raised during the proceeding were:

• The FMA (Foreign Marriage Act, 1969) is unconstitutional for not allowing same-sex or LGBTQ marriages.
• The FMA applies to all individuals, irrespective of gender identity or sexual orientation.
• Gender-specific terms in the FMA must be replaced with gender-neutral ones.
• All rights associated with marriage under the FMA apply to LGBTQ individuals.
• Certain regulations in the Adoption Regulations that exclude LGBTQ couples are unconstitutional.
• The term "married couple" includes LGBTQ couples married under foreign laws.
• Phrases like "male applicant" are replaced with gender-neutral terms in the Adoption Regulations.
• Section 5 of the HMA (Hindu Marriage Act, 1955) permits marriage for LGBTQ couples.
• LGBTQ individuals have the right to a "chosen family."
• Unmarried individuals can nominate any person for healthcare decisions.
• State Governments must ensure safety for all individuals regardless of gender identity or sexual orientation.
• Matrimonial statutes should be gender-neutral for marriage solemnization.
• Marriages can be solemnized for LGBTQ couples, regardless of their gender identity or sexual orientation.
• Authorities should adopt a protocol to protect consenting LGBTQ individuals from their families when needed.

Judgment

Majority View

The majority view in the case was given by Justice S Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha. The Supreme Court ruled that non-heterosexual couples do not have the right to have their relationships recognized either as marriage or as a civil union while reaffirming the right of transgender persons in heterosexual relationships to get married. The minority views expressed by the two judges in this significant case took a markedly different stance on the issue of recognizing unions based on sexual orientation. These judges firmly asserted that the right to enter into a union should not be constrained or limited based on an individual's sexual orientation. In their opinion, discrimination against individuals on the grounds of sexual orientation constituted a clear violation of Article 15 of the Constitution. The judges' minority opinion emphasized the importance of upholding the principles of equality and non-discrimination enshrined in Article 15 of the Constitution. They contended that these principles should extend to include the right to form unions or relationships, irrespective of an individual's sexual orientation. By asserting that discrimination based on sexual orientation is a breach of constitutional rights, the judges sought to challenge and overturn the prevailing legal and social norms that had denied recognition to unions of non-heterosexual couples.

Minority View

The minority view in the case was given by Chief Justice of India DY Chandrachud, and Justice Sanjay Kishan Kaul, stating that the right to enter into a union cannot be restricted on the basis of sexual orientation. Discrimination on the basis of sexual orientation is violative of Article 15 of the Constitution. Moreover, CJI also pointed out that “The Court should address whether the LGBTQIA+ community, as a sexual minority, deserves protection even in the absence of a specific law, recognize the challenges faced by LGBTQIA+ unions, and implement administrative guidelines acknowledging sexual orientation as a physiological phenomenon to prevent discrimination against same-sex unions.” Justice Kaul agreed with the CJI’s decision and stated that “If the SMA's intent is to facilitate inter-faith marriages, then excluding non-heterosexual relationships lacks a rational basis…Regulating only heterosexual marriages would not be a legitimate state objective, particularly given that sexual orientation is a protected category under Article 15(1) of the Constitution.” 

Directions to obviate discrimination

In order to protect the queer community from various forms of violence and discrimination, certain directions were issued by the CJI which are listed as follows:

• “The Union Government, State Governments, and Governments of Union Territories are directed to: 
  • Ensure that the queer community is not discriminated against because of their gender identity or sexual orientation; 
  • Ensure that there is no discrimination in access to goods and services to the queer community, which are available to the public; 
  • Take steps to sensitize the public about queer identity, including that it is natural and not a mental disorder; 
  • Establish hotline numbers that the queer community can contact when they face harassment and violence in any form; 
  • Establish and publicize the availability of ‘safe houses’ or Garima Grehs in all districts to provide shelter to members of the queer community who are facing violence or discrimination;
  • Ensure that “treatments” offered by doctors or other persons, which aim to change gender identity or sexual orientation are ceased with immediate effect; 
  • Ensure that inter-sex children are not forced to undergo operations with regard only to their sex, especially at an age at which they are unable to fully comprehend and consent to such operations;
  • Recognize the self-identified gender of all persons including transgender persons, hijras, and others with sociocultural identities in India, as male, female, or third gender. No person shall be forced to undergo hormonal therapy or sterilization or any other medical procedure either as a condition or prerequisite to grant legal recognition to their gender identity or otherwise;
• The appropriate Government under the Mental Healthcare Act must formulate modules covering the mental health of queer persons in their programs under Section 29(1). Programs to reduce suicides and attempted suicides (envisaged by Section 29(2)) must include provisions that tackle queer identity;
• The following directions are issued to the police machinery:
  • There shall be no harassment of queer couples by summoning them to the police station or visiting their places of residence solely to interrogate them about their gender identity or sexual orientation;
  • They shall not force queer persons to return to their natal families if they do not wish to return to them; 
  • When a police complaint is filed by queer persons alleging that their family is restraining their freedom of movement, they shall on verifying the genuineness of the complaint ensure that their freedom is not curtailed; 
  • When a police complaint is filed apprehending violence from the family for the reason that the complainant is queer or is in a queer relationship, they shall on verifying the genuineness of the complaint ensure due protection; and 
  • Before registering an FIR against a queer couple or one of the parties in a queer relationship (where the FIR is sought to be registered in relation to their relationship), they shall conduct a preliminary investigation…to ensure that the complaint discloses a cognizable offence. The police must first determine if the person is an adult. If the person is an adult and is in a consensual relationship with another person of the same or different gender or has left their natal home of their own volition, the police shall close the complaint after recording a statement to that effect.”

Related Judgments and Acts 

South African Marriage Act

During the court proceedings, the petitioners in this case, drawing inspiration from the South African Constitutional Court's decision in Fourie, argued that the provisions of the SMA should be interpreted in a gender-neutral manner. In the Fourie case, the challenge was against the common law definition of marriage and Section 30(1) of the South African Marriage Act. The South African Constitutional Court found Section 30(1) unconstitutional as it excluded same-sex couples. In this context, the majority opinion suspended the declaration of invalidity for a year, allowing the legislature to make changes. Further, the Court found that the exclusion of same-sex couples was discriminatory and not justified by social or religious reasons. In India, the legal landscape and constitutional regime differ significantly, making the challenge distinct from the South African case, as several provisions in the SMA explicitly limit marriage to heterosexual couples and Indian law doesn't recognize same-sex unions.

The UK House of Lords of Ghaidan

Another international comparison was made during the hearing of the same-sex marriage recognition case. The petitioners have urged the court to interpret the SMA in a "constitutionally compliant" manner, drawing inspiration from the UK House of Lords' decision in Ghaidan. In Ghaidan, the case revolved around a homosexual couple, where one partner, after the death of the other, sought to be considered a "statutory tenant" under the UK's Rent Act. The Rent Act discriminated between heterosexual and homosexual couples in terms of tenancy rights. The House of Lords, invoking the UK's Human Rights Act, interpreted the Rent Act to provide equal rights for same-sex couples, recognizing that the differential treatment lacked justification and violated the European Convention on Human Rights. The case exemplifies the principle of interpreting legislation in a way that aligns with human rights and non-discrimination, which the petitioners wish to apply to the Indian legal context.

Navtej Singh Johar & Ors. vs. Union of India (September 06, 2018)

While pronouncing the judgment, the CJI mentioned the decision in the Navtej Singh Johar case where the Supreme Court “while decriminalizing homosexuality did not hold that the Constitution recognizes a right to marry. Dipak Misra, C.J. writing for the majority held that an individual has a right to a union which encompasses physical, mental, sexual or emotional companionship under Article 21 of the Constitution.”

National Legal Services Authority vs. Union of India (April 15, 2014)

This judgment was addressed by the Supreme Court as “The right of transgender persons to equality under the Constitution and the right against discrimination was recognized by this Court in NALSA.” It also recognized the importance of the right of transgender persons to marry. In the NALSA judgment, the Supreme Court also stated that “the State by rendering the transgender community invisible and failing to recognize their gender identity deprived them of social and cultural rights. This Court recognized the duty of the State to enable the exercise of rights by the transgender community and issued a slew of directions to enforce this duty.” Justice Bhat in his opinion distinguished the judgment in NALSA from the present case and highlighted that “directions (in NALSA) were passed because the “inadequacies … were acute and intolerable” and faced by “entire groups.” 

Justice K.S. Puttaswamy (Retd.) and another vs. Union of India and others (September 26, 2018)

CJI also highlighted the decision in the K.S. Puttaswamy case where it was “observed that the right to privacy extends beyond the right to be let alone to recognizing the vital personal choices such as the right to abort a fetus, and the right of same-sex to marry.” It was further noted that the issue in the K.S. Puttaswamy case was whether the Constitution recognizes a right to privacy rather than the right to marry. Therefore, the decision to recognize such a right falls upon the Supreme Court, as pointed out by the CJI. 

Positives from the Judgement

Although, the bench did not rule in favor of the queer community but the sympathetic view of the Court towards such issues is commendable, and permission to marry a transgender person was given to other transgender and heterosexual people.