By-Sushant Kumar Sharma
ABSTRACT:
The burden to decide on the demand of legalizing and recognizing same-sex marriage by the LGBTQIA+ community now resides with the legislators after the Hon’ble Supreme Court’s judgment. The petitioners in the case stressed equality rights for the community and acknowledged the unions of same-sex marriage.
The demand for legal recognition of same-sex marriage goes back to the landmark case of Navtej Singh Johar v. Union of India, in the said case the Hon’ble Supreme Court of India decriminalized homosexuality. However, the issues related to homosexuality which were going to arise in the coming future were not addressed in the case.
BACKGROUND OF SAME-SEX MARRIAGE:
Before the judgment of Navtej Singh Johar v. Union of India article 377 of the Indian constitution categorised intercourse between same sex as an “unnatural Offence”. The provision is a Victorian-era law, which survived into the 21st century. Interestingly, about 123 countries around the World have never penalized or decriminalized homosexuality. Currently, 57 countries actively criminalize same-sex relations. [1]
Under Articles 14,15,19 and 21 of the Constitution of India, the Naz Foundation Trust challenged the constitutional validity of section 377 of the Indian Penal Code. The contention was that the understanding of sex according to the provision of IPC was solely for the purpose of procreation which is an inadequate and unjust way to deduce the purpose of sex in modern society. The High Court of Delhi ruled in favour of the petitioners and decriminalized same-sex marriage and the same was reversed by the Supreme Court of India in the year 2013. The Supreme Court of India held that the power to decriminalize same-sex marriage is with the parliament and not with the Court.
The judgment of the Supreme Court of India was later challenged in a fresh writ filed by five individuals of the LGBTQ Community in which a five-judge bench of the Supreme Court partially struck down section 377 of IPC and decriminalized same-sex intercourse.
Section 377 of the Indian Penal Code:
Unnatural offenses —Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.[2]
INDIAN HISTORY AND HOMOSEXUALITY:
After the judgment of the Supreme Court decriminalizing same-sex intercourse on September 2018, there were a lot of people objecting it on the basis of it being against the sentiments and culture of Hindus. But the origin of the criminalization of homosexuality in India is a reflection of European morality arising out of Christianity and by section 377 of the Indian Penal Code of 1861 Britishers criminalized homosexuality.
On the other hand in Hindu scriptures we can find evidence of Hindu religion being more open and accepting about the queers and homosexuality was a normal aspect of our past which was made into a taboo by the Britishers in the colonial period. For instance few instances from Hindu scriptures are mentioned below:
- Krittivasa Ramayana: Text states that King Dilip had two wives, and he died without leaving an heir. Following this, Lord Shiva appeared in the dreams of the queens and told them that they would bear a child if they made love to each other. The widowed queens did as directed, and one of them got pregnant, eventually giving birth to King Bhagiratha. He is a famous king known to have brought River Ganga from heaven on earth.[3]
- Matsya Puran: It talks about the time Lord Vishnu transitioned into a beautiful women named “Mohini” to trick the demons and letting the gods drink the amrit.
- Mahabhartha: The sacred text of Hindu’s contain a story of Sikhandi who was born a women but was raised as a man who later with the help of yaksha to become a man to enter the war.
- Kamasutra: Chapter nine of Kamasutra by Vatsyayana discusses oral sexual acts, termed Auparashtika, homosexuality, and sexual activities among transgender persons.[4]
OPINIONS OF JUSTICE’S ON THE BENCH:
The bench of 5 judges in a majority of 3:2 ruled against the demand of LGBTQIA+ for wanting rights to adopt and constitutional protection for civil unions. But there were several points where the judges agreed with each other and there were points on which they disagreed.
1. Points where the Judges agreed:
1.1 Anonymously the whole bench agreed that queerness is not solely an urban concept :
CJI Dhananjaya Y Chandrachud Said:
“Homosexuality or queerness is not solely an urban concept, nor is it restricted to the upper classes or privileged communities. People may be queer regardless of whether they are from villages, small towns, or semi-urban and urban spaces. Similarly, they may be queer regardless of their caste and economic location. It is not just the English-speaking man with a white-collar job who lives in a metropolitan city and is otherwise affluent who can lay claim to being queer but also (and equally) the woman who works on a farm in an agricultural community,”
Justice Kaul Said:
“The non-heterosexual relation is a part of Indian civilization and Justice Kaul also cited illustrations from the Rig Veda, Somdatta’s Kathasaritsagara, and Sufi tradition to prove that the non-heterosexual unions were a part of mankind through history and different cultures”
“It would thus be misconceived to claim that non-heterosexual unions are only a facet of the modern social milieu”
1.2 Recognition of Same-Sex Marriage is not given under the Special Marriage Act :
CJI Dhananjaya Y Chandrachud Said:
A verdict to strike down the provision of the Special Marriage Act will take India to pre Independence era, the CJI added, “Such a judicial verdict would not only have the effect of taking the nation back to the era when it was clothed in social inequality and religious intolerance but would also push the courts to choose between eradicating one form of discrimination and prejudice at the cost of permitting another,”
Justice Kaul:
In a separate Judgement Justice Kaul agreed on SMA being violative of right to equality, he added “However, I recognize that there are multifarious interpretive difficulties in reading down the SMA to include marriages between non-heterosexual relationships. As rightly pointed out by the learned Solicitor General, tinkering with the scope of marriage under the SMA can have a cascading effect across these disparate laws,”
Justice Bhatt Jointly With Justice Kohli:
They stated that it would be extending the scope of the SMA out of its objective if it was to be read to include same-sex marriage, as the act sought to provide an avenue for those marriages that did not enjoy support in society or did not have the benefit of custom to solemnize.[5]
1.3 Right to Marry is not a Fundamental Right:
Justice Bhat:
“The fundamental importance of marriage remains that it is based on personal preference and confers social status. The importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support… There cannot, for the above reasons, be a per se assertion that there exists an unqualified right to marry which requires treatment as a fundamental freedom.”
Justice Narshimha:
“There is no unqualified right to marriage guaranteed by the Constitution, that qualifies it as a fundamental freedom.”
- Points where Judges Disagreed:
2.1 Everyone has the right to enter a Civil Union:
CJI Dhananjaya Y Chandrachud said:
“The right to enter into a union includes the right to associate with a partner of one’s choice, according to recognition to the association, and ensuring that there is no denial of access to basic goods and services is crucial to achieving the goal of self-development,”
“A failure to recognise such entitlements would result in systemic discrimination against queer couples,”
Justice Bhatt:
Justice Bhatt conflicted with the opinion of CJI and Justice Kaul and said “Ordering a social institution” or re-arranging existing social structures, by creating an entirely new kind of parallel framework for non-heterosexual couples, would require a conception of an entirely different code, and a new universe of rights and obligations. This would entail fashioning a regime of state registration, of marriage between non-heterosexual couples; the conditions for a valid matrimonial relationship amongst them, spelling out eligibility conditions, such as minimum age, relationships which fall within prohibited degrees; grounds for divorce, right to maintenance, alimony,” There was an agreement on justice Bhatt’s opinion by Justice Kohli and justice Narasimha.
Justice Narsimha Said:
“The framing of a positive right and the positive entitlements which flow therefrom, essentially require the State to regulate such unions and benefits. In my opinion, the direction in effect, is to amend existing statutory frameworks, if not to legislate afresh,”
2.2 Regarding queer adopting rights:
CJI Dhananjaya Y Chandrachud said:
“Such an assumption perpetuates a stereotype based on sexuality (that only heterosexuals are good parents and all other parents are bad parents) which is prohibited by Article 15 of the Constitution”, Justice Kaul agreed with CJI on this stand.
Justice Bhatt:
Justice Bhatt on the other hand believed that both parents are required for good parenting and stated “To read the law in the manner adopted by the Chief Justice, with all due respect, would have disastrous outcomes, because the ecosystem of law as it exists, would be unable to guarantee protection to the said child in the case of breakdown of an unmarried couple, adopting jointly. This, therefore, would not be in the best interest of the child,”
Justice Narsimha in a separate judgment greed with Justice Bhatt regarding the constitutionality of the CARA Regulations of 2020.
KEY TAKEAWAYS :
– The 3-2 majority in the five-judge constitutional bench of the Hon’ble Supreme Court rules that there cannot be legal recognition of same-sex marriages in India.
– The petitioners during the hearings argued for the equality rights of the LGBTQIA+ community and pleaded for acknowledgment to lead a dignified life.
– The court held that the queer community of India cannot be legally married under the provisions of the Special Marriage Act, of 1956.
– The court also refused to grant adoption rights for the LGBTQIA community while Chief Justice D.Y Chandrachud held a dissenting opinion.
– The final declaration of the Supreme Court was that the Parliament should decide on the issues regarding the under-inclusivity of the LGBTQIA+ community in the legislation
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[1] Dr. Akkai Padmashali and Ors. v. Union of India, W.P. No. 159 of 2023
[2] The Indian Penal Code, 1860, No.45, Acts of Parliament, 1860
[3] Deepanshi Mehrotra, The Pre-Colonial History of Homosexuality in India : Why love is not western, LAWCTOPUS (June 29,2021),
[4] Supra
[5] Utkarsh Anand, Same-sex marriage verdict: Points of agreement, divergence between the 5 Supreme Court Justices, HINDUSTAN TIMES (Oct 18, 2023)
