24 Aug 2023
Brief History of and Recent Developments on this 'seminal issue'
Analysis of Legal Barriers to Same-Sex Marriage in India
LGBTQIA is an umbrella term intended to include all sections of a diverse community. The history of homosexuality in modern India starts with British rule where all activities against the order of nature were criminalized including homosexual activities under section 377 of the Indian Penal Code in 1861. The battle for decriminalizing homosexual activities under Section 377 is a very long battle.
The same-sex marriage protests and the campaign is at a very crucial stage. The hearing for legalizing same-sex marriage is about to be held by the Constitutional Bench of the Supreme Court. The hearing for which the 2.5 million members of the LGBTQ community awaits is set to be taking place on April 18, 2023.
Talking about same-sex marriage we first need to grasp a quick understanding of, the term same-sex marriage. If you google these two terms, the first Wikipedia definition says that it is the marriage of two people of the same legal sex. It is also known as gay marriage. In 2023, same-sex marriage is legally recognized in 34 countries. In 2003, Massachusetts became the first state in the U.S. to legalize same-sex marriages, paving the way for many other states to consider legalizing same-sex marriage.
Status of same-sex marriage in India
We just learned above, same-sex marriage is when two people of the same gender marry. Same-sex marriage is not recognized legally in India. Many of the financial and legal rights that are usually enjoyed by legally married couples are not given to homosexual couples.
Before moving ahead, let's understand Section 377-
Section 377 of the Indian Constitution states that if someone willingly indulges in sexual intercourse against the order of nature, with a woman, a man, or an animal then it shall be considered a punishable offense under the Indian Penal Code.
Section 377 is a more than 150-year-old law, which had its roots in the colonial era. It criminalizes some kind of sexual acts as unnatural offenses which are punishable by ten years.
As per Section 377, some of the heterosexual acts which are considered against the natural order are punishable by this section.
In 2012, the Ministry of Home Affairs was against decriminalizing any act which is homosexual. Later, in 2014 the Central Government filed a review petition which was dismissed by the Supreme Court of India. Thereafter in 2015, a Member of Parliament, from INC( Indian National Congress) got a bill for revoking Section 377. In 2016, the Supreme Court announced a decision to review the Criminalisation of Homosexual Activity once. Finally, in 2018, the court heard a plethora of petitions and the court gave a historic judgment stating that same-sex, marriage is not a criminal offense anymore. The Navtej Singh Johar & Ors v. Union of India AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016 the Secretary Ministry of Law and Justice was the landmark judgment given by the court in September,2018. The court pronounced the criminalization of Articles 14,15,19 and 21. The court’s judgment reversed the 2013 decision of the court in Suresh Kumar Koushal v. Naz Foundation Civil Appeal No. 10972 OF 2013.
This is important because the LGBTQ community will feel a better sense of security within the community. Earlier, they could not openly disclose their sexual orientation. Now they can express their sexual orientation in a much more free manner.
Decriminalization is just a step toward progress, this will give LGBTQ community the confidence to reduce and remove legal barriers regarding marriage, adoption, inheritance, equal pay, and equal work.
Decriminalization of same-sex marriage
The various petitions that were filed were in court. two couples from the LGBTQ+ community filed Public Interest Litigation (PIL) regarding the fact that not recognizing them as a married couple was an infringement of their constitutional rights.
The first petition was filed by a couple who were together as a couple for over ten years. The next petition was filed by a couple who were in a relationship for almost 17 years. They were bringing up children however as per law they were not having any legally recognized relationship with the children. The remaining other petitions were filed for recognition of same-sex marriage by the Special Marriage Act of 1954.
In 2018, same-sex marriage was decriminalized but later in 2021, the Central government opposed it. The Central government said to the Delhi High Court that in India marriage will be legal, only when a biological man and a biological woman, who can reproduce are in a union of marriage. The government said that to see the validity of any law, the Legislature has to see the aspect of social morality and see if society will accept it.
A year later, in 2022, the Supreme Court of India brought some protections for atypical families. The term atypical families were used for single-parent, blended families, and same-sex couples. The court said that such unconventional families also deserve to be protected by the law.
The apex court of India in 2023 January, transferred all the petitions lying before the High Courts to itself. The court in March of 2023, while hearing the cases said that it is a matter of seminal importance. The Central government said, to the court that same-sex marriage will cause complete havoc. The case was then transferred from the three-judge bench to the five-judge bench and called a matter of seminal importance.
After 2018, same-sex relationships are valid in India but same-sex marriages are not recognized in India. Four couples from the LGBTQ community approached the court, for validation and legal recognition of same-sex marriage, however, the ruling government rejected the plea in its absolute sense. Tushar Mehta, the Solicitor General of India asserted that same-sex couples can have relationships, and their relationships are not subject to any kind of stigma however these couples cannot have recognition of marriage.
The affidavit submitted by the government says that marriage is recognized when it is a union between a man and a woman and this union carries utmost holiness. Thus, as per the government same-sex marriages will create havoc in the future and the children adopted by these couples might suffer as they will not get to experience both the parents of both genders. Such statements reflected the reserved and conventional thinking of the government. On the other hand, Chief Justice D.Y. Chandrachud argued that it is not essential that the kids raised by same-sex couples also turn out to be LGBTQ.
The Hindu Marriage Act governs Hindu marriages, while the Christian, Parsi, and Muslim marriages are governed by particular matrimonial laws of their respective religion. Couples can also choose to marry under the Special Marriage Act, this is mostly seen if the marriage is between members of two different religions
Besides this, same-sex couples are asking for the same recognition as heterosexual couples. Some of the examples of the challenges faced due to lack of equal rights are-
i) not being able to do a signature as a relative in times of medical emergencies,
ii) and during rites for their partner.
The Chief Justice of India, DY Chandrachud said the hearing and proceeding regarding the recognition and legalization of same-sex marriage in India, will be taking place in the month of April 2023.
Legal Barriers Faced by Same-Sex Couples
Same-sex couples face various legal barriers. The legal obstacles are many.
Some of the legal barriers they face are during -
Although, decriminalizing Section 377 is a huge ray of hope for the whole LGBTQ community however the struggle is a long one. Talking about the problems faced by this community -adoption, and surrogacy is one area where the community struggles with equal rights. A review petition-pleas filed in the court in 2019, regarding the same, however, the apex court of India dismissed the plea.
At present in India, one of the partners can legally adopt a child as a single parent, however, the other partner will not be a legally recognized parent. In India adoption is regulated and governed by the Hindu Adoptions and Maintenance Act of 1956 and the Juvenile Justice Act, of 2015. As per the Hindu Adoptions and Maintenance Act, adoption is governed by Hindus, Sikhs, Jains, etc. The act specifically uses the words husband and wife which puts same-sex couples out of the circle. Besides this, the act is particularly for the Hindus, thus it again creates a problematic situation for same-sex couples belonging to various other religions.
On the other hand, the Juvenile Justice Act does not put any religious restriction on adoption, the JJ Act states that a child cannot be adopted by a couple unless they are at least married for two years. As we already know, same-sex marriage is not legal in India, the same-sex couple is unable to fall under the category of a two-year relationship. Hence this comes as a barrier for them in adopting children.
It is argued that these two acts mentioned here are an infringement of Article 14 which is the right to equality before the law and equal protection of the law, the distinction drawn between married and unmarried couples for adoption fails to be classified and justified as just and fair, thus it causes infringement of the Article 14. Also, there is no rationale to prove that homosexual couples cannot be as good a parent as compared to the heterosexual couple. as Article 21 which is the right to life and the article provides the right to individual liberty as said in the K.S Puttaswamy v UOI case 2017 10 SCC 1. In the case of Navtej Singh vs Union of India, the court said, using the context of the Canadian case, James Egan and John Norris Nesbit v. Her Majesty The Queen in Right of Canada, that it is harmful to human dignity when such instances of unfair treatment are observed. In this case, it was also asserted that the LGBTQ community has the same fundamental right and constitutional right that is given to other citizens. Thus, not giving the same privilege to the people of the LGBTQ community for being a parent, is quite unfair.
The laws and constitutional rights play a very crucial role in validating and protecting marriage, however, it seems that same-sex couples and their unions are treated in an unfair and inferior manner.
Legal Barriers to Succession by the LGBTQ Community
The Indian succession laws are governed by personal laws. The personal laws of all religions and communities have referred to binary notions for the inheritor. The Hindu Succession Act talks about the inheritance of property but does not mention anything about the LGBTQ+ community.
Similar, to the Hindus the Muslims are also governed by their law called the Shariat. The Shariat also mentions male and female terms in the list of sharers.
The sexual orientation of the person is not any plausible reason for the disqualification of the person from getting a succession of the property or inheriting it. The Supreme Court of India has asserted in the Navtej Singh v Union of India AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016 case that the right to live a dignified life is a must for everyone including the LGBTQ+ community. Thus, any law that does not allow the inheritance or succession of property to the people of the LGBTQ community is infringing the decision and judgment of the Supreme Court of India.
Therefore, no person can be disqualified to inherit property on the grounds of being from the LGBTQ community.
Legal Barriers Faced by the LGBTQ Community in Employment Rights
The NALSA v. Union of India AIR 2014 SC 1863, judgment recognized the mistreatment done to the community during employment. Later an act was passed the Transgender Persons (Protection of Rights) Act, 2019 (Transgender Act). Section 3 of the Act prohibits individuals and the government to mistreat them on the basis of their identity or remove them on the same grounds from employment. Section 9 prohibits any kind of discrimination and provides protection against discrimination in the community.
In Southern Railway v. Rangachari, AIR 1962 SC 36 the Supreme Court, said its judgment that the Indian Constitution prohibits discrimination in employment. Additionally in KS Puttaswamy v. Union of India, , 2017 10 SCC 1 Supreme Court, said that the sexual orientation of a person is a private matter and thus it should not be a matter of concern in employment matters.
The problem arises as the Transgender Act remains silent on the fine or penalty that can be charged for not adhering to labor rights and thus it makes the act seemingly meaningless.
The Transgender Act also talks about the punishment of two years in cases of abuse ( sexual or physical) but it does not explain what acts count in the category of sexual abuse.
Besides this, there are no guidelines for the prevention of sexual harassment in the workplace for transgender.
A few of the recommendations for the way ahead could be
1. Spreading awareness regarding the difference between sexuality and gender. This would help in bringing a change in the thinking of people on how they view same-sex couples. The only way to do this is by encouraging open conversations about this from a very young age in peer groups, educational institutions, and most importantly households.
2. India is slowly and gradually changing its perspective and becoming more open and accepting, the same is being reflected in our policy and law-making bodies, however, we need to work on maintaining equality before the law.
3. There should be a framework for laws that are anti-discrimination in nature
these laws should be framed for both center and state levels so that implementation of the same is efficient and this will help in bringing a greater sense of dignity to the lives
of the LGBTQ community.
4. There is a lot of unawareness that prevails at the level of the officers in the Centre and state thus they should be made aware thus they should be updated with the changes in laws so that they do treat them unfairly and deny them public services such as the health care services.
Most of the legal statutes relating to marriage, adoption, inheritance, and other ones carry a deep sense of heterosexual relations but they lack to consider homosexual relations.
We certainly cannot deny the fact that the judicial system has incorporated and has come up with various changes in existing laws. Gradual steps are being taken toward providing rights to the LGBTQ community, however, there is a long way to go in removing many legal barriers and giving them legal validation of marriage.
This piece expresses the opinions of the author alone and not S.C.A.R.
S.C.A.R neither endorses nor discredits any claims or opinions made in this write-up.