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Breaking Barriers: The Struggle for Legal Recognition of Gay Marriages in India

Abstract

This article highlights the ongoing struggle for LGBTQIA+ rights and acceptance in India, focusing on legalising same-sex marriage. It provides historical context, including decriminalising homosexuality in 2018, and discusses current efforts to change laws and societal attitudes towards same-sex relationships. The article argues that legalising same-sex marriage is necessary to provide equal rights and benefits to LGBTQIA+ individuals and promote societal acceptance and support for their relationships. The article suggests that acknowledging same-sex marriage would be a positive step for India's LGBTQIA+ community and society.

 


When the phrase "LGBTQIA+" is spoken, it is met with criticism, love, acceptance, and perplexity. The LGBTQIA+ group includes, as the name implies, Lesbian, Gay, Bisexual, Trans, Queer, Intersex, and Asexual/Aromatic persons, with the plus signifying a myriad of other identities that do not fall under these umbrella terms. Over the last decade, there has been an increase in people becoming more open and public with the part of their identities that rests in this particular community. More individuals are stepping up, desiring to change the socio-legal status of persons identifying with this group. Contemporary Indian historians have tackled these societal ideas, citing various instances when homosexuality is proven to be a part of the culture and is deemed perfectly natural. For example- The Mahabharata, one of two Indian subcontinental Sanskrit epics that described the great conflict between the Pandavas and Kauravas, is the account of Princess Amba, who became Shikhandi in another life. Shikhandi, through rebirth, later cross-dressing, and 'sex change’, plays a pivotal role in the conclusion of that great war and marks a turning point in the epic. During the British administration in India in 1860, gay activity was deemed unnatural and a crime under Chapter 16, Section 377 of the Indian Criminal Code (IPC). Upon independence, on Nov 26, 1949, the “Right to Equality was enshrined in Article 14, although homosexuality remained a crime. Decades later, following the numerous protests for LGBT rights, the landmark Delhi High Court” judgement” in the Naz Foundation v. Govt. of NCT of Delhi 2009 SCC OnLine Del 1762 declared that criminalising consensual homosexual consummation between adults violates fundamental rights guaranteed by India's Constitution. Nevertheless, in Suresh Kumar Koushal and Ors. v. NAZ Foundation and ors. 2014 1 SCC 1, the Supreme Court overturned the Delhi High Court's Naz Foundation v. Government. of NCT of Delhi decision in 2013, and Section 377 of the Indian Criminal Code was re-introduced. MP Shashi Tharoor later submitted a measure to decriminalise homosexuality in late 2015, but the Lok Sabha rejected it. On Sept 6, 2018, the Supreme Court unanimously decided that Section 377 was unconstitutional "insofar as it criminalises consensual sexual conduct between adults of the same sex," which was a massive victory for the LGBTQIA+ community. Yet, Indian LGBT citizens confront societal and legal challenges that non-LGBT people do not. The law does not prohibit gay intercourse and gay expression. According to a landmark decision by the Supreme Court of India in Deepika Singh v. Central Administrative Tribunal 2022 SCC OnLine SC 1088, which permits “unregistered cohabitation for same-sex couples on par with heterosexual couples, gay couples have protections and advantages equivalent to married couples as live-in couples (comparable to cohabitation”).” Law specialists have asked the government to introduce legislation and develop laws permitting same-sex marriage, same-sex couples' adoption of children, and inheritance rights. The plight continues for the LGBTQIA+ community as they now stand together in the Supreme Court for the constitutional right to marry. Four gay and lesbian couples have filed a petition in India's Supreme Court seeking the legalisation of same-sex marriages. The nation's highest court will consider three other gay couples' similar applications on March 13, 2023, without a deadline for a decision. The court will consider as to if “gay marriage would be legally allowed under the Hindu Marriage Act, the Indian Christian Marriage Act, the Parsi Marriage and Divorce Act, and Muslim personal laws, in addition to the secular law recognised as the Special Marriage Act, which governs unions between inter-religious couples, non-believers, and others” (that are majorly uncodified). If allowed, India would become Asia's second-largest economy after Taiwan to acknowledge same-sex marriage, a necessary right for the nation's LGBTQ community over four years after the country's highest court decriminalised gay sex and would surpass the US as the largest democracy with such rights for LGBTQ+ couples. “Gay couples and LGBTQ proponents contend that by failing to acknowledge same-sex marriage, the government is denying homosexual couples the benefits and right to equality stipulated in the constitution.” Several couples think legalising same-sex unions will encourage more people to come out as gays and improve their connection to the government. Homosexuality has largely been stigmatised in India's traditional society, despite recent changes in attitudes towards same-sex relationships. There are now openly gay celebrities in India, and several important Bollywood movies feature LGBT themes. A Pew study found that between 2013 and 2019, the acceptability of homosexuality in India rose by 22 percentage points to 37%. The legal, political, and global acceptance of homosexual relationships has spread worldwide. Same-sex marriage is currently recognised as legal in 25 nations. This means that 155 million people, or roughly 2.5% of the world's population, reside in regions where homosexual marriage is legal. A coupling of the same sexes impacts no one. No one's union is injured by anyone else, and the legality of a person's right to marry does not depend on the rejection of anybody else, so it is naive to assert that heterosexual marriage, in any form, causes harm. Marriage and romantic relationships are essential in Indian culture and society. What is known as a sacrament has divine roles as its core component. The correct action in this situation is for Indian personal marriage legislation to accept same-sex unions.


*This article is authored by Ishanvi Khanna and Aaina Agarwal, Students from Symbiosis Law School, Noida and reviewed by Kushal Deep Singh, Student from Symbiosis Law School, Noida.

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