Of Love And Legal Battles – Progress On Same-Sex Marriage in India

India is a land of vibrant culture and tradition, where love has been celebrated with great pomp and show since time immemorial. Despite the influence of British Victorian values and colonization that introduced laws criminalizing same-sex activity, India’s rich history and mythology have always been accepting of people of diverse gender identities and sexual orientations. Ancient Hindu mythology has references to gender fluidity and non-binary identities, and the Kama Sutra, an Indian text on human sexuality, recognizes same-sex desire. After over 150 years, the Indian Supreme Court decriminalized consensual same-sex activity in 2018, a significant step towards acceptance. However, the LGBTQ community still faces discrimination and legal battles for basic rights such as marriage and adoption. It’s disheartening to see that the love between two people of the same gender is yet to be legally recognized. Same-sex marriage, which has been widely embraced in several parts of the world, remains a distant dream for India’s LGBTQ community. 

“Love knows no gender or boundaries. We need to break down the walls of discrimination and create a world where everyone is free to love who they choose.” – Laxmi Narayan Tripathi, transgender rights activist.

“The right to love and to choose whom we love is a basic human right. Same-sex marriage is not only about marriage, it’s about acceptance, love, and equality for all.” – Harish Iyer, LGBTQ activist

Same-sex marriage, a form of matrimonial bliss that has been globally accepted, remains uncharted territory in India. A country that boasts of a rich cultural and traditional legacy has yet to fully embrace same-sex marriage, leaving the LGBTQ+ community struggling for legal recognition. Despite the landmark 2018 verdict of the Supreme Court of India which invalidated Section 377 of the Indian Penal Code, thus legalizing consensual sexual activities between same-sex individuals, same-sex couples still don’t have the legal right to marriage or enter into civil partnerships. Consequently, same-sex couples are unable to enjoy the legal recognition and benefits that heterosexual couples are privileged to receive. In the legal history of India, there have been a number of attempts to legitimize same-sex marriage, including a 2019 petition by Kavita Arora and Ankita Khanna under the Special Marriage Act. Unfortunately, the plea was dismissed by the court, which advised seeking recourse through the legislature.

In August 2022 a Supreme Court judgement granted same-sex couples the rights and benefits of cohabitation, thereby signifying a significant step towards inclusivity and progress.

And as a silver lining, the Supreme Court has now set the stage for final arguments on a group of petitions seeking legal recognition for same-sex marriage. In January 2023, a three-judge bench took the liberty of consolidating nine pending petitions from the Delhi and Kerala high courts, and on March 13, 2023, the three-judge bench under the leadership of CJI DY Chandrachud referred the case to a five-judge Constitution bench. This decision carries immense significance for India, home to 2.5 million LGBTQ+ people, and if the Supreme Court reaches a favorable judgment, India will join the league of 35 countries worldwide to embrace same-sex marriage.

What has been the update about the same-sex marriage hearing lately?

Day 1: The Supreme Court of India initiated the hearing of a batch of petitions seeking legal recognition of same-sex marriage on April 18, 2022. Advocates of the legalization of same-sex marriage argued that it is a fundamental right under the Indian Constitution and presented various international precedents that have improved the lives of LGBTQ+ individuals. The judges raised questions about the legal and social consequences of granting same-sex marriage rights while the arguments were based on issues of equality, non-discrimination, and the protection of fundamental rights.

Day 2: During day two of the same-sex marriage hearing in India, those supporting same-sex marriage argued that it is discriminatory to deny same-sex couples the right to marry, and emphasized the emotional and mental trauma faced by the LGBTQ+ community due to lack of legal recognition. Meanwhile, religious groups opposed the legalization of same-sex marriage on the grounds that it is against Indian cultural and religious values. The judges raised questions about the nature of marriage and the rights of same-sex couples. One notable argument was made by senior advocate Arvind Datar, who suggested that the Special Marriage Act does not define marriage as solely between a man and a woman, making it possible for same-sex couples to marry under the act. 

Day 3: On day 3 of the same-sex marriage hearing in India, a key argument was made by senior advocate Menaka Guruswamy, who represented parents of LGBTQ+ individuals. She asserted that the right to marry is not just an individual right, but a family right, and that the families of LGBTQ+ individuals deserve the same legal recognition and protection as those of heterosexual individuals. Additionally, the amicus curiae, Senior Advocate Anand Grover, provided comparative legal analysis and emphasized the global trend towards recognizing same-sex marriage as a fundamental right. He also stressed the need for anti-discrimination laws and sensitivity training for law enforcement agencies.

Day 4: On day 4 of the same-sex marriage hearing in India, the petitioners’ counsel concluded their arguments, emphasizing the need for equal treatment of citizens regardless of their sexual orientation or gender identity. They also argued that the government must recognize and safeguard the fundamental rights of citizens rather than imposing moral or religious beliefs. The judges inquired about the interpretation of the term “sex” in the Indian Constitution in relation to the rights of the LGBTQ+ community

Day 5: During day 5 of the same-sex marriage hearing in India, the central government presented its counter arguments to legalizing same-sex marriage. The government contended that marriage is a union between a biological man and a biological woman and not recognizing same-sex marriage is consistent with the religious beliefs of the country. The government pointed out that the rights of the LGBTQ+ community are safeguarded under various laws and the decriminalization of homosexuality in 2018. However, the judges inquired about the unequal treatment of same-sex couples and emphasized the importance of extending the same legal rights and protections to them as provided to heterosexual couples.

The fate of same-sex marriage in India is yet to be determined by the court. However, let us not overlook the fact that this fight goes beyond mere legal validation. It is about the innate right of every individual to experience love, sans biases or discriminations. The battle for equality serves as an upsetting reminder that true progress lies not only in legislation but also in the willingness of society to embrace differences and celebrate the uniqueness of every human being.