Name: Arya Sreeram
Legalising Same-Sex Marriages in India: The Need of the Hour
"We deserve to experience love fully, equally, without shame and without compromise."
- Elliot Page1
Introduction:
On account of Pride Month 2023, it becomes important to discuss legalising same-sex
marriages, a step that could bring India forward into being a more inclusive and liberal
country. Our country is shackled with age-old traditions that ban or frown upon homosexuals,
among others, or so we’ve been taught. It's interesting to note that Hinduism does not strictly
outlaw homosexuality. Numerous parts of Hindu mythology depict homosexuality and other
LGBTQIA+ identities.
According to the Matsya Purana, Lord Vishnu used the guise of a woman named Mohini to
deceive demons, and Lord Shiva fell for her beauty immediately. Lord Ayyappa is the result
of this relationship. Therefore, Lord Ayyappa was born to two men.
We can find other examples from Ramayana where a king named Dilip died without an heir
and left his two wives widowed. Lord Shiva then told the women that if they made love, that
he would bestow them with a child if they made love. They did as told and gave birth to Lord
Bhagirath who is famously known to have brought river Ganga to the Earth from the heavens.
68 famous LGBTQ quotes for Pride Month and beyond, Today.com ( 09-06-2023, 08:56)
https://www.today.com/life/quotes/lgbtq-quotes-rcna29630
1
Even in the Mahabharata, Sikhandhani, the daughter of King Drupada, was regarded as a
formidable transgender warrior. She was brought up to be a prince so she might fight and
exact vengeance on the Kurus. In fact, Drupada even got her married to a woman. After the
woman got to know, she revolted against this. Sikhandhani then with the help of divine
intervention, was bestowed with manhood the same night.
Even in early Indian history, some historians claim there was the existence of homosexuality.
It is well known that Alauddin Khilji, the sultan who oversaw important improvements to
Delhi's economy, delegated his rule to Kafur, who was rumoured to have a sexual relationship
with the monarch. At the time, many historians regarded these to be true.
These few instances demonstrate the presence of homosexuality and gender fluidity at the
time. Moreover, the fact that there were sanctions set forth for committing such acts, which
are recorded in numerous books of Hinduism and Islam2 shows us the existence of
homosexuality at the time.
Landmark Judgements that shaped the need for legalising same-sex
marriages in India:
It has been 9 years since the landmark judgement of Navtej Singh Johar3 has taken place
which decriminalised section 377. Section 377 defined what natural and unnatural sex meant
and criminalised any form of unnatural sex. Unnatural sex included carnal or oral intercourse,
which could be penalised. However, after several protests and arguments made in the court, it
was decriminalised, paving the way for recourse for LGBTQIA+ members. This instilled
hope towards a brighter and safer future for them. The courts opined that any discrimination
2
Prabhash K Dutta, Homosexuality in ancient India: 10 instances, India Today ( 09-06-2023, 20:40)
https://www.indiatoday.in/india/story/10-instances-of-homosexuality-among-lgbts-in-ancient-india-12814462018-07-10
3
Navtej Singh Johar and Ors V Union of India,
https://main.sci.gov.in/supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf
towards any sexual orientation or gender was violative of Article 14 which is the right to
equality. This is a fundamental right which cannot be infringed and criminalising sexual
intercourse between two consenting adults just because of their sexual orientation was
completely arbitrary and unfair in nature as it would deny them the opportunity to live freely,
and further also deny them the chance to identify and express themselves the way they would
want to.
In the case of Shakthi Vahini V Union of India4, the importance of Articles 19 and 21 was
raised. The Supreme Court's three-judge panel ruled that the aforementioned articles
recognised the right to choose one's life partner consensually. The court in this case also ruled
that the freedom of choosing one's life partner is a fundamental freedom that cannot be
violated. In Shafin Jahan v. Union of India5, the Kerala High Court made a similar
observation, holding that a person's liberty and dignity are dependent on their ability to pick
the person they wish to spend the rest of their lives with. These rulings, among many others,
have highlighted the need for our country to legalise gay marriages. 6
Current Scenario:
Many couples believed that because they could still not marry their partners in a moral and
dignified manner, they were unable to openly express their love and sacramental commitment
to one another. They wanted to celebrate their love, but they were unable to do so due to
limitations imposed by the current laws in the nation. As a result, numerous petitions were
submitted in order to propose and change the current laws. one of them. The Supreme Court
4
Shakthi Vahini V Union of India,
https://main.sci.gov.in/supremecourt/2010/18233/18233_2010_Judgement_27-Mar-2018.pdf
5
Shafin Jahan V Union of India
6
Express News Service, Key Supreme Court verdicts that moved the needle on LGBTQ rights in India, Indian
Express, (11-06-2023, 09:25)
https://indianexpress.com/article/explained/explained-law/key-sc-verdicts-that-moved-the-needle-on-lgbtqrights8565720/#:~:text=Navtej%20Johar%20v%20Union%20of%20India&text=A%20five%2Djudge%20Constitutio
n%20Bench,on%20sexual%20orientation%20and%20gender.
is now hearing the case of Supriyo @ Supriya Chakraborty V Union of India7 Both
Supriya and Abhay, who are both men, feel deeply in love and knew they wanted to be
together forever. Even after approval from their family, they could not legally get married as
the law did not allow that. Now, the supreme court has held a ten-days long hearing on this
matter discussing the advantages and disadvantages of the same.
Arguments in favour:
Firstly, Senior Advocate Mukul Rohatgi raised an argument that the right to marry whomever
one wants to, especially for homosexual couples was implicit in Articles 14 which is the right
to equality, Article 15- the right to not be discriminated against, Article 16 which talks about
equality in opportunities, Article 19- freedom of speech and expression and lastly, Article 21
which is right to life and liberty, making it necessary for us to interpret this right to choose
one’s life partner under these fundamental rights.
Further, advocates also opined to look at altering the provisions of the Special Marriage Act
(SMA) 1954 to make it more inclusive to other groups. Rohtagi also discussed the
importance of changing the terms of marriage as a matrimonial bond between “spouses”
instead of a “man and woman.” This not only makes it more gender-neutral but also makes it
more inclusive to other sexual orientations.
Another advocate Singhvi also addressed the court further that the minimum age for lesbian
couples would be prescribed as 18 years as that is the minimum age of marriage for a woman
in India. This meant that for gay couples the minimum age would be 21 years, as per law
currently. Now, for transgender couples would be based on what gender they identify as.
7
Supriyo @ Supriya Chakraborty v Union Of India 2023, https://www.scobserver.in/wpcontent/uploads/2023/01/Supriyo-@-Supriya-Chakraborty-redacted.pdf
Even senior advocate Jayna Kothari held the opinion that not allowing LGBTQIA+ couples
to get married and have a family would be violative of Article 15. She also pushed further for
a more gender-neutral interpretation of the act. Further, Vrindra Grovar also suggested that
such marriages could also possibly be looked at under the Mental Health Act 2017 which is
within the ambit of the SMA.
All in all, the arguments raised in favour of legalising the marriage of same-sex couples held
that, in the end, if it is not granted, the right to equality has been violated, and would also
deny them societal and legal protection.
Arguments made against:
Representing the Centre, SG Tushar Mehta argues that if we legalise equality in marriage,
around 160 laws would have to be changed. Moreover, he says only the Parliament can make
such laws. He was also unsure about the alteration of SMA as it could affect the intent of the
laws.
Few advocates also argued that SMA can be read only for heterosexual couples. Sibal, an
advocate says, “What they have asked for is not a fundamental right but something short of it
but something meaningful.”
Others have also argued that the rulings observed in Navtej Johar or Shafeen Jahan were
monocentric in nature, but the current issue is more “polycentric” as mentioned before, this
would not involve change only in one law, but multiple provisions and could maybe also lead
to more damage than good.8
Conclusion:
8
Khadija Khan, Aditya Jain, SC reserves verdict on same sex marriage: Here are the arguments made over 10
days, Indian Express ( 11-06-2023, 12:00)
https://indianexpress.com/article/explained/explained-law/sc-same-sex-marriage-here-are-the-arguments-over10-days-8609177/
In a country like India with so many personal laws, it becomes difficult to incorporate a law,
hoping it would change the situation entirely. One needs to understand the gravity and treat
this matter delicately. The court should ideally focus on providing solutions which provide
the LGBTQIA+ community with the freedom they have been fighting for. The right to marry,
although is not explicitly a fundamental right, is still one of the basic rights one should and
must have. It is essentially under the right to freedom which allows one the freedom in
choosing their life partner. The law in India as of now is that people identifying themselves
under this community, are denied this right.
They cannot marry who they love, which is something that needs to be discussed more,
although the courts do have a point that by making the marriage law in India more inclusive,
some complexities do arise like changing many other laws just for this. Adoption laws,
inheritance laws and other family laws will all need to amend in order to incorporate this
framework completely.
While it is a very complex and long process, I do believe that the country can take steps
further, one at a time. We, as one of the most developing nations in this world should take this
step further and should make sure to provide freedom and equality to every individual, be it
any gender or sexual orientation they choose to identify with.
Some data that has been collected by Sanjana Mishra and others from Children First Mental
Health Hospitals Pvt Ltd. stated that more than 85% of the individuals who identify
themselves under the spectrum of homosexuals agreed with the fact that the decriminalising
of homosexuality under Section 377 improved their mental health gravely. Individuals felt
more liberated and freer. Such behaviour reduces distress among these people and also
lowered the suicide rates committed by the community.
But homosexual couples still don’t get to have the same experiences of normalcy that any
heterosexual couples do. They are given the freedom to showcase their love and commitment
to each other, enjoy the sacred bond of marriages and being called spouses and also receive
more support for their relationship. This sense of normalcy and acceptance can only happen if
the law allows it. Society will have the chance to accept and support their families, and these
couples can experience the beauty of marriage and life together without having to hide their
relationship in shame. This would gravely lower the suicide and death rates exponentially and
also allow these individuals to live happier and fuller life.9
9
Sanjana Mishra, et al, The Anticipated Impact of LGBTQIA+ Marriage Equality Legislation on Indian Society
and Mental Health.