SAME-SEX MARRIAGE AND THE RIGHT TO EQUALITY: A CONSTITUTIONAL ANALYSIS

Authored By: Fathimathe Shahana Chorapilan

Government Law College Kozhikode

INTRODUCTION

The ongoing civil rights battle surrounding same-sex marriage is one of the most contentious constitutional issues in India today. Despite increased legal recognition of rights for LGBTQ+ persons across the country in recent years, same-sex couples are still currently unable to access legally recognized marriage according to Indian law. A marriage certificate not only provides social legitimacy of a relationship but is also a legally acceptable form of documentation that provides a variety of benefits to both partners, including legal inheritance rights, legal adoption rights, legal succession rights, marital maintenance rights, marital tax benefits, and rights for making healthcare decisions about one partner’s health in an emergency situation. Denial of access to marry as a same-sex couple can therefore have significant legal consequences for both partners and for the same-sex couple as a whole.

Recent landmark decisions made by the National Legal Services Authority v. Union of India (2014), Justice K.S. Puttaswamy v. Union of India (2017), and Navtej Singh Johar v. Union of India (2018) have granted constitutional rights to LGBTQ+ people in India and defined their rights to dignity, privacy, equality, and autonomy. However, the continued exclusion of same-sex couples from the right to marry remains a troubling constitutional issue confronting the right to dignity, equality, and liberty. The present article will examine the evolution of LGBTQ+ rights in India, as well as the legal battle surrounding same-sex marriage; discuss what the Indian Supreme Court now says regarding same-sex marriage; outline difficulties faced in granting legal recognition to same-sex marriages; and assess the likelihood of same-sex marriage being recognized in the future.

EVOLUTION OF LGBTQ+ RIGHTS IN INDIA

In the last ten years, changes have occurred in how people view LGBTQ+ rights in India. Section 377 of the IPC (Indian Penal Code, 1860) has been used to criminalize other individuals who have engaged in consenting relationships with those of the same sex and has been widely condemned for violating the rights of these individuals, including their dignity, privacy, and maintaining equality.

A significant milestone in granting rights to sexual and gender minorities occurred in the case of National Legal Services Authority v. Union of India (2014)[1], in which the Supreme Court acknowledged transgender people as a distinct third gender with rights to equality, dignity, and self-identity. The second case related to sexual and gender minority rights is Justice K. S. Puttaswamy (Retired) v. Union of India (2017)[2], in which the Supreme Court determined that privacy is an intrinsic right under Article 21 and that sexual orientation is part of one’s personal identity.

The most important development took place in Navtej Singh Johar v. Union of India (2018)[3], when the Supreme Court of India ruled that consensual gay/lesbian relationships were no longer illegal after Section 377 was partially invalidated. This case established that any discrimination against a person because of their sexual orientation is a violation of Articles 14, 15, 19, and 21 of the Indian Constitution and upholds the principles of dignity, autonomy, and equality.

Same-sex marriage continues to be unrecognized legally, even though the Indian Penal Code (IPC) has been replaced with the Bharatiya Nyaya Sanhita, 2023 (BNS), reaffirming the ongoing efforts of the LGBTQ+ community to obtain full legal status in India.

THE CONSTITUTIONAL DEBATE ON SAME-SEX MARRIAGE

Same-sex marriage is supported by the constitutional guarantees included in Article 14; specifically, Article 14 guarantees every person has equal rights before the law as well as equal protection of the law. By not allowing for same-sex marriages, the government will create a legal distinction between heterosexuals and homosexuals, thus raising concerns with respect to the treatment of both groups being treated differently.

Discrimination against certain categories of people, including sexual orientation, is prohibited by Article 15 and has progressively been constructed so as to encompass persons who face discrimination based on their sexual orientation as well. Article 19 also prohibits the restriction of freedoms relating to expression and association and therefore extends to include an individual’s right to express their identity, as well as keep personal relationships.

Furthermore, Article 21 guarantees the right to life and personal liberty. Judicial interpretation of this provision has expanded the rights conferred upon by Article 21; these extend, at a minimum, to dignity, privacy, autonomy, and the freedom to make personal choices. The Supreme Court has recognized the right to choose one’s life partner as central to one’s personal liberty. For this reason, many scholars reason that the freedom to marry should also apply to persons in same-sex relationships.

According to supporters of marriage equality, being able to exercise one’s constitutional rights does not rely on one’s sexual orientation. Since marriage is a legal institution that provides rights and protections, the denial of marriage rights to one segment of the population solely due to their sexual orientation appears to be inconsistent with the constitutional idea of equal rights and dignity.

THE SUPREME COURT’S POSITION

Prior to deciding on same-sex marriage, in Deepika Singh v. the Central Administrative Tribunal (2022)[4], the Supreme Court recognized the diversity of families, which do not have to conform to traditional structures. The court’s developing understanding of family relationships is reflected in this case, despite the fact that it did not involve a same-sex marriage issue.

In Supriyo @ Supriya Chakraborty v. Union of India (2023)[5], the Supreme Court of India heard arguments from petitioners advocating for same-gender marriage. Petitioners asserted that, as a result of the discriminatory treatment of individuals in the LGBTQI+ community, current marriage legislation must be applied irrespective of one’s gender, and to refuse that recognition violates articles 14, 15, 19, and 21 of the Constitution of India.

The Supreme Court of India accepted that the LGBTQI+ community experiences discrimination and difficulty in their relationships, but the majority of the court did not recognize a constitutional right to same-sex marriage. Rather, the Court ruled that it is within the legislative domain to create or change the law surrounding marriage, and so any changes should be made by Parliament.

This highlights the gap between the recognition of LGBTQ+ identities and the legal recognition of their relationships. The Supreme Court did reaffirm the constitutional rights of dignity, privacy, autonomy, and equality; however, the issue of marriage equality is yet to be resolved in India.

ARGUMENTS FOR LEGAL RECOGNITION OF SAME-SEX MARRIAGE

There are several reasons for legally recognizing same-sex marriages in India. First, marriage equality supports the fundamental value of equality provided for in Article 14 of the Constitution since the provision guarantees that everyone should be able to enjoy the benefits of marriage without discrimination. Discrimination against same-sex couples denies people access to important legal provisions, thus creating unequal treatment and discrimination.

The second reason to recognize same-sex marriages is that such recognition will uphold constitutional values of dignity, autonomy, and personal liberties provided for in Article 21 of the Constitution. People’s right to freedom, including the right to choose their own partners, can only be guaranteed through recognition of the legality of same-sex marriages. In other words, denial of the same undermines these constitutional values and principles.

Thirdly, there are tangible benefits associated with marriage equality. For example, same-sex marriages may have practical legal issues regarding inheritance, succession, adoption, healthcare decisions, insurance benefits, and even next of kin. Marriage equality will thus give legal protection in these spheres and make sure that the same-sex marriage receives equal treatment under the law. In addition, some countries like Canada, South Africa, the United States, and even Taiwan recognize the legitimacy of same-sex marriage. This is an indication of an international trend toward marriage equality.

CHALLENGES AND THE WAY FORWARD

Strong constitutions provide strong reasons to argue for legislative action but there remain many hurdles to overcome before equality can be achieved. Community attitudes toward same-sex relationships vary greatly; in some communities, cultural or religious beliefs will undoubtedly affect how marriage equality is discussed. The issue of equality before the law is therefore sensitive for cultural, religious, and political reasons.

At present, the most comprehensive way in which reform can happen is through legislative action. The authority for Parliament to make changes to the current marriage legislation and the associated laws, such as those related to the adoption, inheritance, maintenance or succession of same-sex couples is available under the Constitution. If developed correctly, an appropriate legislative framework will assist with clear guidance on compliance with the Constitution and the provision of rights.

The degree to which the public are informed of and understand marriage equality can impact the effectiveness of any legal change, and therefore education and public awareness programs will be an important part of supporting legal changes. Most reforms will be more effective when they occur within an environment of social acceptance. Many educational institutions, decision makers and civil society organisations can contribute to reducing prejudice and increasing understanding of the rights of LGBTQ+ people.

CONCLUSION

The controversy over same-sex marriage is a major test of the commitment of India towards constitutional values of equality, dignity, freedom, and non-discrimination. Decisions in NALSA, Puttaswamy, and Navtej Singh Johar cases have helped tremendously in advancing LGBTQ rights and laid the foundation for future developments in this regard. However, it should be noted that lack of legal recognition of same-sex marriages has been posing various challenges to LGBT people.

The denial by the Supreme Court of the existence of a constitutional right to same-sex marriage in Supriyo v. Union of India case has left the bigger issues related to constitutionality open-ended. Ultimately, attaining marriage equality would entail a mix of legislative, judicial, and social measures. Same-sex marriage would most certainly continue to be one of the focal points of India’s developing constitutional jurisprudence.

REFERENCE(S):

Cases

National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

Justice K.S. Puttaswamy (Retd) v. Union of India, (2017) 10 SCC 1.

Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

Deepika Singh v. Central Administrative Tribunal, (2023) 13 SCC 681.

Supriyo @ Supriya Chakraborty v. Union of India, 2023 SCC OnLine SC 1348.

Legislation

Constitution of India, 1950.

Indian Penal Code, 1860.

Bharatiya Nyaya Sanhita, 2023.

Secondary Source