While legalizing same-sex marriages can bring into consideration a myriad range of concerns (parenthood, succession, economic dependency, and domestic violence), various petitions have been brought before
the Hon’ble Supreme Court (most recently, the Kerala High Court) for recognizing same-sex marriages under the Special Marriage Act, 1954. The extent and nature with which homosexuality has perpetually been stigmatized is an aspect that cannot be denied. Acts like Section 377 of the Indian Constitution have been the biggest affront to the dignity and humanity of those belonging to the LGBTQ community. Whilst the decriminalization of Section 377 and the slow uprisal of gender nonbinary movements have been managing to restore the dignity attached to same-sex relationships; there is, however, a long journey ahead when one begins to introspect on the severe kinds of discrimination that members of the LGBTQ+ community face daily. Having said that, it is imperative that we look beyond the possibility of discussing same-sex relationships in the 21st century and bring into light myriad possibilities, of which same-sex marriages hold an important role in taking this discussion ahead.
The sheer concept of marriage brings into consideration the idea of an engrained mindset which perpetuates a patriarchal ideology that involves the union of a man and a woman. That is considered to be a pre requisite in context to the same being a sacramental bond between a male and a female in order to ensure the progression of society through the system of procreation. Dr. Sarvepalli Radhakrishnan, for instance, introspected the concept of marriage, where in he postulated the institution of marriage as an exemplary need with regard to attaining four objectives in life: Kama, Artha, Dharma, and Moksha.
With the idea of marriage slowly changing and the Oxford Dictionary planning to add same-sex relationships into the concept of marriage, it is also essential to bring to attention the general transformation of marriage as a social institution. The transformation of marriage has been particularly witnessed in context to various countries, taking into cognizance the need to legalize same-sex marriages. In most countries, the presence of a state-sponsored singular religion has brought into consideration the propagation of a conservative outlook that is less tolerant of homosexuality. This is evident by laws that have been passed by middle eastern countries that have criminalized homosexual intimacy, whereas countries like the Netherlands(2000), Belgium (2003), Spain (2005), Sweden (2009), Canada (2005), Denmark (2012), the United States (2015), Germany (2017), and most recently Costa Rica (2020) have on the other hand legalized same-sex marriages.
Also Read : Same-Sex Marriages in India: Long Way to Go for Equal Rights
The Decriminalization of Section 377 and the Role of the Indian Judiciary
As acknowledged by Justice J.Chandrachud, Section 377 is mainly based on deep-rooted gender stereotypes that have been conditioned by society for centuries and were responsible for the repudiation of the concept of same-sex relationships. In 2001, Naz Foundation, a nongovernmental organization had approached the Delhi High Court seeking the repudiation of particular provisions of the Indian Penal Code (IPC), demanding the striking down of those readings that tended to criminalize homosexuality. Even though a landmark 2009 case did do away with the criminalization of homosexuality by declaring it to be violative of Article 14 of the Indian Constitution that played a discriminatory role in obstructing one’s basic right to privacy, “insofar as it criminalized consensual sexual acts of adults in private,” the Naz Foundation v. Govt. of NCT judgment was however overturned in Suresh Kumar Kaushal v. Naz Foundation due to consistent protests by several religious groups demanding the restoration of this particular section, as it was exploitative of societal and cultural values of our country. In consideration of continuous protests organized by these religious sections, The Hon’ble Supreme Court in 2013 eventually overturned the judgment stating that such matters should be left to the discretion of the Parliament and should be in the control of the legislation to amend Section 377. Soon after, a curative petition was brought about taking the case back to the Supreme Court in which the Hon’ble Court read down provisions that criminalized sexual intercourse with an individual of the same sex and held that consensual sex between competent adults was considered to be legal, where in they took into consideration a gamut of constitutional provisions and dismissed the position taken in the 2013 judgment, which stated that homosexuality pertains to a minuscule minority and should not be ineffective due to the aforementioned reason. Furthermore, in the case of K.S. Puttaswamy v. Union of India, wherein the right to privacy was affirmed as a basic fundamental right by a nine-judge bench in the Supreme Court and also stipulated that bodily autonomy is an integral part of one’s right to life and liberty that is guaranteed by Article 21 of the Indian Constitution. While the aforementioned judgments were crucial with regard to giving various interpretations of the concept of homosexuality, an important precedent was set with the case of Navtej Singh Johar v. Union of India, wherein Section 377 of the IPC, 1860,was declared to be unconstitutional and violative of Article 14 and Article 19(1)(a) of the Indian Constitution. Even though Section 377 has not been obliterated by law as a whole, that is, it is still applicable in the context of bestiality, it is an emboldening step for the LGBT category as it has played a great role in giving such sections proper representation, but it is still a matter of great controversy in context to them being entitled to equal citizenship, especially particular rights pertaining to marriage, inheritance, and custody of their children.
Also Read : Trans Community in South Asia Stands for Legal Gender Recognition: Manisha Dhakal
The Road Ahead
The Indian Constitution, unlike Article 16 of the Universal Declaration of Human Rights, does not take into cognizance the right to marry as a constitutional or fundamental right, which has so far been recognized as a fundamental right in accordance with Article 141 of the Indian Constitution, wherein the judgments given by the Hon’ble Supreme Court shall be binding on all courts. Whilst the interpretations pertaining to the right to marry have been affirmed in cases such as Lata Singh v. the State of UP, alongside Shakti Vahini v. Union of India, which have postulated that the very manifestation of one’s right to choose a partner is ensured through the importance and applicability of Articles 19 (the right to freedom) and 21 (the right to life and liberty) of the Indian Constitution. This aspect was similarly reiterated in the case of Shafin Jahan v. Asokan K.M. & Ors, in which it was stipulated that the right to marry a person of one’s choice is integral to Article 21 of the Constitution. While legalizing same-sex marriages can bring into consideration a myriad range of concerns such as raising assumptions of laws relating to parenthood, succession, economic dependency, and domestic violence, various petitions have been brought before the Hon’ble Supreme Court (most recently, the Kerala High Court) for recognizing same-sex marriages under the Special Marriage Act, 1954.
All in all, the battle towards legalizing same-sex marriages irrespective of being an uphill task, in context to the Central Government stating same-sex marriages to be against Indian cultural norms and conventions, there still remains hope for the latest decisions of the High Courts of Punjab, Haryana, Uttarakhand, and Orrisa that have explicitly taken into cognizance the rights of homosexual couples in context to live-in relationships, which in all eventuality, furthers the discussion and brings in great optimism for the legalization of same-sex marriages.
