RECOGNITION OF SAME SEX RELATIONSHIPS IN INDIA :CONSTITUTIONAL AND LEGISLATIVE CHALLENGES

Abstract 

There is a rich history in context of same-sex relationships in India. The acceptance of same-sex relationships has gradually changed, largely due to judicial action rather than legislative change.  Same-sex relationships were historically prohibited for decades due to the colonial legacy of Section 377 of the Indian Penal Code, which reflected moral and societal conservatism.  In Navtej Singh Johar v. Union of India (2018), the Supreme Court upheld these fundamental rights, decriminalizing consensual same-sex relationships and emphasizing the importance of constitutional morality over social prejudice. Marriage, adoption, and inheritance concerns are still unresolved because legislative measures for the legal recognition of same-sex relationships are still lacking in spite of this historic ruling.  With a focus on the judiciary’s crucial role and the urgent need for corresponding legislative action to ensure equality, inclusivity, and protection under the Constitution, this article critically examines the historical and constitutional trajectory of same-sex relationship recognition in India.

Keywords : Naz foundation, Suresh Kumar koushal, Navtej Singh Johar, Same Sex, Indian Penal Code, Equality, Fundamental Rights, India

Introduction 

Lesbian, Gay, Bisexual, Transgender, and Queer identities are all included under the umbrella term LGBTQ+, which refers to a wide range of people whose gender identities and orientations defy heteronormative expectations.  The inclusion of the “+” symbol denotes inclusivity and recognizes that gender and sexuality are not fixed binary concepts but rather exist along a fluid continuum.  

The term itself emphasizes how sexuality and gender are intertwined, with gay, lesbian, and bisexual representing differences in sexual orientation, transgender referring to gender identity, and queer questioning the strict classifications that have long governed social norms. 

In India, the struggle for recognition and equality of the LGBTQ+ community has been shaped by a long history of legal and social marginalization. Rooted in colonial-era legislation, particularly Section 377 of the Indian Penal Code, the law for decades criminalized same-sex relationships, thereby institutionalizing stigma and exclusion. The landmark Navtej Singh Johar v. Union of India (2018) judgment marked a historic shift, decriminalizing consensual same-sex relations and affirming the constitutional rights of sexual minorities. However, despite this judicial victory, substantial gaps persist in terms of social acceptance and legislative protection. Issues such as marriage equality, adoption rights, and protection against discrimination remain contentious and unresolved.

Thus, the LGBTQ+ community’s journey in India shows a continuous shift away from criminalization and invisibility and toward dignity and recognition. Today, ensuring that equality extends beyond the courtroom and into daily life requires not only legal reform but also the dismantling of ingrained social prejudices.

1. Judicial Review on the LGBTQ Rights in India

While same-sex marriage, civil unions, and other partnerships are not recognized in India, cohabiting same-sex couples who choose to live together are given some limited legal recognition. Since the late 1980s, a number of same-sex couples have tied the knot in customary Hindu ceremonies. Nevertheless, the state does not register these marriages, and the couples do not have the same rights and advantages as married couples of the opposite sex. An analysis of LGBTQ+ rights in India reveals that the judiciary has been proactive in defending the community’s constitutional rights, while the legislature has remained inactive.  The gap created by legislative inaction has been filled in the last ten years by historic Supreme Court rulings that have improved sexual minorities’ equality, dignity, and privacy.  The court’s vital role in upholding and defending LGBTQ+ rights in India is demonstrated by the following rulings.

1.1 Naz Foundation v. Government of NCT Delhi 

The Delhi High Court ruled that Section 377 IPC violated Articles 14, 15, and 21 ( all rights on the concept of equality ) of the Constitution by making consensual adult sexual relations illegal.  The Court upheld the LGBTQ+ community’s rights to equality, privacy, and dignity and acknowledged sexual orientation as a fundamental component of identity.

1.2 NALSA v. Union of India

This case arose following the contentious decision in Suresh Kumar Koushal v. Union of India (2013), in which the Supreme Court reversed the Naz Foundation’s progressive outcome in the Section 377, IPC.  The Court adopted a more inclusive stance in NALSA v. Union of India (2014), acknowledging transgender individuals as the “third gender” and upholding their fundamental rights under Articles 14, 15, 19 and 21 of the Constitution.  Legislative action followed the ruling, which also established thorough guidelines to protect the rights and dignity of transgender people.  The Transgender Persons (Protection of Rights) Act, 2019 was the result of these efforts, and although it has good intentions, it has drawn criticism for requiring administrative certification of gender identity, a procedure that compromises the privacy and autonomy of the people it is intended to protect.

1.3 Justice (Retd.) K. S. Puttaswamy v. Union of India

The Supreme Court unanimously recognized the right to privacy as a fundamental right protected under Article 21 of the Constitution. The Court held that privacy encompasses personal autonomy, including the freedom to make intimate choices relating to one’s identity, sexuality, and relationships. This ruling became a cornerstone for subsequent LGBTQ+ rights jurisprudence, as it directly overruled parts of Suresh Kumar Koushal v. Naz Foundation (2013) that had disregarded sexual orientation as a matter of privacy.

The Supreme Court observed that “the right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15, and 21 of the Constitution.” 

1.4 Navtej Singh Johar v. Union of India

This landmark judgment decriminalized homosexuality in India by reading down the scope of Section 377 of the Indian Penal Code. The Supreme Court struck down the provision to the extent that it criminalized consensual sexual relations between adults, holding that it violated Articles 14, 15, 19(1)(a), and 21 of the Constitution. The Court recognized the right to live with dignity, autonomy, and personal choice as integral to individual liberty, drawing heavily from the principles laid down in Justice K.S. Puttaswamy v. Union of India (2017).

1.5 Abhijit Iyer Mitra v. Union of India

The legal recognition of same-sex marriages under the Hindu Marriage Act of 1955 and the Special Marriage Act of 1954 is at issue in the case of Abhijit Iyer Mitra v. Union of India.  In Navtej Singh Johar v. Union of India (2018), the petitioner argued that the state must take affirmative action to recognize same-sex marriages in accordance with constitutional guarantees of equality and international human rights obligations to which India is a signatory, since the decriminalization of consensual same-sex relationships.

The Solicitor General, Tushar Mehta, opposed the petition, arguing that the term “spouse” within the framework of Hindu law refers exclusively to a biological male and female, and that judicial intervention to expand this definition would disrupt the established balance of personal laws. The Central Government further maintained that the decriminalization of Section 377 IPC did not imply a corresponding right to marry, emphasizing that marriage in India is deeply rooted in cultural, religious, and social traditions. It was asserted that any reform in this domain falls within the prerogative of the legislature rather than the judiciary.

2. Constitutional and Legislative challenges Arising from Same Sex relationship in India 

While the judiciary has upheld the rights of the LGBTQ+ community, the legislature remains reluctant to extend full legal recognition to same-sex relationships. The lack of amendments to marriage and family laws, such as the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954, creates a gap between constitutional guarantees of equality and actual legal protection. As a result, same-sex couples continue to face denial of rights related to marriage, adoption, and inheritance, reflecting the pressing need for legislative reform.

2.1 Constitutional challenges in India

• Violation of Equality (Article 14): Same-sex couples are not afforded the same legal protections as heterosexual couples.  

• Discrimination on the Grounds of Sex (Article 15): It is unlawful to exclude someone based on their sexual orientation. 

• Right to Life and Dignity (Article 21): The right to live with dignity and personal autonomy is violated when one is denied legal recognition.  

• Freedom of Expression and Choice (Article 19): It is against personal liberty and expression to prevent people from selecting their partners.  

• Conflict between Social and Constitutional Morality: Social conservatism and judicial progressivism clash, making it difficult to enforce rights.

2.2 Legislative Challenges in India 

• Lack of Statutory Recognition: Under Indian law, same-sex marriages and partnerships are not currently recognized by any legislation.  

• Outdated Personal Laws: Laws such as the Special Marriage Act of 1954 and the Hindu Marriage Act of 1955 exclude same-sex couples by using gendered terms like “wife” and “husband.”  

• Absence of Adoption and Family Rights: Same-sex couples are not allowed to adopt, use surrogates, inherit, or receive maintenance.  

• Inadequate Anti-Discrimination Laws: No comprehensive laws exist that shield people from discrimination on the basis of gender identity or sexual orientation.  

• Legislative Inertia: Parliament has not passed legislation guaranteeing equality for sexual minorities in spite of progressive court rulings.

3. Conclusion 

It is imperative that Indian society and the legal system move beyond heteronormative biases to acknowledge and respect the LGBTQ+ community as an integral part of our social fabric. Sexual orientation is merely one facet of human identity and cannot be grounds for exclusion or discrimination. True equality demands not only judicial recognition but also active legislative intervention to secure social, economic, and cultural rights for sexual minorities. Enacting comprehensive legislation will ensure legal uniformity, provide protection against abuse and discrimination, and affirm the community’s right to live with dignity. The path forward must focus on inclusion, acceptance, and the normalization of diverse identities within our constitutional framework.

Reference(S): 

1. Mathur, Vaishali (June 2020). “Homosexual Live-in relationship in India: Socio Legal Dimension in reference to Right to life or Social stigma”. International Journal of Psychosocial Rehabilitation. 24 (8): 14989–14995. ISSN 1475-7192. Archived from the original on 5 January 2024.
2. “Jharkhand: Same sex couple ties knot at Koderma temple, says they plan to legalize marriage”. The Times of India. 7 December 2020
3. 160 Delhi Law Times 277. (India)
4.  Civil Appeal 10972 of 2013. (India)
5.   The Tribune India, “Same-Sex Marriages Not Recognised by Our Laws, Society and Our Values: Centre to Delhi HC” The Tribune India (September 14, 2020) https://www.tribuneindia.com/news/nation/same-sex-Marriages-not-recognised-by-our-laws-society-and-our-values-centre-to-delhi-hc-141139 accessed December 5, 2021.

Cases Referred 

1. Navtej Singh Johar v. Union of India AIR 2018 SC 4321. (India)
2. Naz Foundation v. Government of NCT Delhi 2009 SCC OnLine Del 1762
3. NALSA v. Union of India AIR 2014 SC 1863. (India) 
4. Abhijit Iyer Mitra v. Union of India, W.P. (C) No. 6371 of 2020 (Del. HC Mar. 31, 2022)
5. Justice (Retd.) K.S. Puttaswamy v. Union of India AIR 2017 SC 4161. (India)