Written By: Chaitanya Hegde, Kshama Shah, and Sailee Prabhu-Dessai Edited By: Bea Pelingen
The idea of individualism has ignited a wildfire in almost all corners of the world, highlighting many different rights, including the acknowledgement of human rights, the right to equality, the right to freedom of speech and expression, and many more. With the help of this movement, a crucial issue of the human rights of lesbian, gay, bisexual, transgender, queer, questioning, intersex, or asexual (“LGBTQIA+”) people has come into sharper focus. Same-sex marriage has received both strong support and strong opposition on social, political, and religious grounds. Some jurisdictions either allow full-fledged marriage between same-sex couples or recognise same-sex civil unions through regulations.
Several rules that are specific to India’s religious communities govern marriage in India; all only allow marriages between male and female partners. In 1861, the British considered sexual activities "against the order of nature," including all homosexual activities, to be criminalised under Section 377 of the Indian Penal Code. Following which in 1994, transgenders were granted voting rights as a third sex. The Supreme Court of India has largely been responsible for the expansion of LGBTQ people's legal rights in India over the past decade. By officially recognising non-binary or transgender people as a "third gender" in 2014, it laid the groundwork. It strengthened the right to privacy in 2017, and it also recognised sexual orientation as an important aspect of an individual's privacy and dignity. The Supreme Court decriminalised homosexual sex in 2018, overturning a British colonial-era law, and expanded LGBTQ people's constitutional rights. Despite the 2018 ruling, members of India's LGBTQ community complain about societal rejection and discrimination against gay people. LGBTQ activists claim that, while a 2018 ruling confirmed their constitutional rights, they continue to be denied legal support for same-sex marriages, a fundamental right enjoyed by heterosexual married couples. The societal concept of marriage is typically centred on male-female relationships.
As a result, several regions have upheld legal restrictions against same-sex marriages. This means that individuals in same-sex relationships do not automatically receive legal and financial benefits that come with marital status, such as the ability to file joint tax returns or receive employment and health benefits. These advantages, which are crucial in light of the AIDS epidemic, include partners' rights in the event of death, inheritance, and adoption. While heterosexual couples have access to these benefits, homosexual couples are still unable to take advantage of them in society. Four years after striking down a law criminalising gay sex, on March 13 2023, the Supreme Court of India heard petitions seeking legal recognition of same-sex marriages, raising hopes for the country's LGBTQIA+ community. In a landmark event for the LGBTQ+ community in India, the Supreme Court recently heard arguments on a plea seeking legal recognition of same-sex marriages in the country. The court acknowledged the significance of the issue and decided to postpone the plea for further arguments on April 18, to be adjudicated by a five-judge bench whose proceedings will be live-streamed. However, the Indian government has opposed same-sex marriage, citing its potential to disrupt the delicate balance of personal laws and societal values. Despite this opposition, the case is a crucial step towards greater equality for the LGBTQ+ community in India, following the decriminalization of homosexuality in 2018.
Decriminalization of section 377 of the Indian Penal Code
Section 377 of the Indian Penal Code has made unnatural sexual acts a crime since its implementation as law in 1862. Such acts include homosexuality and may result in punitive measures. After several years of debate and varied judgements, the Supreme Court of India issued a landmark decision decriminalising homosexuality in 2018, Navtej Singh Johar & Ors. v. Union of India. In Navtej Singh Johar, a Constitutional Bench of the Supreme Court decriminalised consensual sexual conduct between adults of the same sex by reading down S. 377 of the Indian Penal Code, 1860. The Supreme Court ruled that LGBTQIA+ have the right not to be discriminated against because of their sexual orientation, that they are entitled to full and equal protection under the Constitution, and that the state has a positive obligation to " recognize rights which bring true fulfilment to same-sex relationships." The Supreme Court's decision in Navtej Singh Johar has altered the lives of thousands of LGBTQIA+ individuals and couples across the country.
According to the Supreme Court's ruling, Articles 14 (Equality before the Law), Article 15 (Prohibition of Discrimination on the Basis of Race, Religion, Caste, Sex, or Place of Birth), Article 21 (Protection of Life and Liberty), and Article 19 (Freedom of Expression) of the Constitution, all lie at the core of fundamental rights that protect individuals' privacy and sexual orientation.
Marriage legislative frameworks in India
In India, each religious community has its own set of personal laws regarding marriage and divorce. The Hindu Marriage Act of 1955, the Indian Christian Marriage Act of 1872, the Parsi Marriage and Divorce Act of 1936, the Special Marriage Act of 1954, and the Foreign Marriages Act of 1969 are among them. Recognizing same-sex marriage necessitates amending personal marriage laws, which raises the issue of religious acceptance. One option that does not jeopardise religious sentiments is to seek amendments to the secular Special Marriage Act, which allows for civil marriages between people of different religions. However, the success of such a legal initiative is dependent on the legislative body's support, as evidenced by the failure of a 2015 private member bill proposing same-sex marriage legalisation due to a lack of support.
Impact of Legislations and the Constitution to Cases
Inclusion of Gender Identity and Sexual Orientation in the Special Marriage Act, 1954
The Indian Parliament passed the Special Marriage Act in 1954 (“SMA”) with the objective of making a special civil form of marriage available to anyone in India and Indian nationals living in other countries, regardless of faith or citizenship. The parties to the marriage were assumed to be an opposite-sex couple under the SMA. Section 4 of the SMA specifies that "the male has completed the age of twenty-one years and the female has completed the age of eighteen years" before a marriage can be solemnised. Furthermore, Schedule I of the SMA outlines the degrees of prohibited relationship, which assumes that the spouses are an opposite-sex couple once again. The terms 'widow,' 'widower,' 'bride,' and 'bridegroom' are used in the Act and Schedules. Therefore, the SMA violates the principles of equality before the law and anti-discrimination by failing to include the option to solemnise same-sex marriages in the scheme of the Act.
Violation of fundamental rights under Articles 14, 15, 19 and 21 of the Indian Constitution
Article 14 of the Indian Constitution requires the State not only to protect against inequality, but also to create a just, fair, and equal society that ensures equality of status and opportunity for all citizens, all of whom are guaranteed fundamental rights under Part III of the Constitution. In the case, Deepika Singh v Central Administrative Tribunal & Ors., the Supreme Court of India widened the definition of ‘family’ under Indian law, which permitted unregistered cohabitation for same-sex couples on par with heterosexual couples, same-sex couples have rights and benefits equal to married couples as live-in couples (analogous to cohabitation). Although same-sex couples can obtain the rights and advantages as a live-in couple (analogous to cohabitation), the court did not recognise same-sex marriage or civil unions. Further denying same-sex couples the right to legalise their marriage is a violation of their fundamental rights guaranteed under Articles 14 of the Indian Constitution. Same-sex couples should have the right to marry and enjoy the same legal rights and protections as heterosexual couples. This will promote equality and non-discrimination and will help to create a more just and inclusive society.
Article 15 of the Indian Constitution prohibits discrimination on the basis of religion, race, caste, sex, or place of birth. Denying same-sex couples the right to marry is discriminatory on the basis of their sexual orientation, which is a violation of their right to non-discrimination. Discrimination based on sexual orientation is a form of social stigma that prevents same-sex couples from enjoying their rights on an equal basis with others. This violates the principle of equal protection of the laws enshrined in Article 14 of the Constitution.
Article 19 of the Indian Constitution guarantees the right to freedom of speech and expression, assembly, association. Marriage is a fundamental right that allows two individuals to form a family and enjoy the rights that come with it. By denying same-sex couples the right to marry, the State is preventing them from enjoying their fundamental right to expression.
Article 21 of the Indian Constitution guarantees the right to life and personal liberty. This right is important in promoting the liberty to be able to choose one own’s partner.and to live with dignity. Denying same-sex couples the right to marry violates their right to live with dignity and their right to choose a life partner. By denying them the right to marry, the State is preventing them from enjoying their fundamental rights and is infringing upon their personal liberty.
Therefore, the exclusion of same-sex couples from the Special Marriage Act, 1954 not only violates the fundamental rights of equality and non-discrimination but also denies them the constitutional right to marry and form a family. The right to marry and the right to form a family are basic human rights that are recognized and protected under international human rights through the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, both of which India is a signatory to. Such discrimination contributes to the marginalization and stigmatization of the LGBTQIA+ community, leading to social, economic, and psychological harm.
Several countries have already legalized same-sex marriage, recognizing that it is a matter of equality and human rights. India, as a democratic and pluralistic society, should follow suit and amend the Special Marriage Act to include same-sex marriages. This would not only uphold the principles of equality and non-discrimination but also contribute to a more inclusive and accepting society that respects and celebrates diversity.
Challenges faced by LGBTQIA+ community and steps taken by the government
The lack of recognition of same-sex partners in India may have an impact on economic benefits under the Employment Provident Fund Scheme of 1952 and the Workmen's Compensation Act of 1923, which stipulate that benefits are only given to people related by blood or marriage. Section 2(d) of the Workmen's Compensation Act of 1923 provides compensation only to the widow or widower and other blood relatives. It is not possible for same-sex couples to seek compensation on behalf of their deceased partners under this Act. Further, the lack of safety and security is a major issue faced by the LGBTQIA+ community, as they often experience housing denial, community segregation, and threats from family, neighbours, and landlords. Even if they have the means to seek better housing, discrimination from landlords limits their options, leaving them with few choices and basic amenities.
The Indian government has taken several steps to improve the living conditions and rights of marginalized groups, including LGBTQIA+ people in the past few years. For instance, the Real Estate (Regulation and Development) Act of 2016 prohibits discrimination during the allotment process, ensuring that sellers cannot discriminate against potential buyers on the basis of their religion, caste, gender, or sexual orientation. In addition, the Transgender Persons (Protection of Rights) Act 2019, prohibits discrimination against transgender individuals in various aspects of life, including employment, education, healthcare, and access to public goods and services.
However, despite these positive changes, LGBTQIA+ community continue to face discrimination in the legal regime of marriage. Married couples in India enjoy several legal benefits, such as deductions under section 80C of the Income Tax Act 1961, and the ability to nominate their spouse as a beneficiary for gratuity benefits, provided for under Section 6 of the Payment of Gratuity Act 1972. Similarly, the Employees' Provident Funds and Miscellaneous Provisions Act 1952, and the Employees' Compensation Act 1923, both limit benefits to family members defined as spouses, children, or parents, excluding same-sex partners. Additionally, Indian evidentiary law grants spousal privilege protection to married couples, but same-sex couples are not entitled to this protection.
While the Indian government has taken positive steps to improve the living conditions and rights of the LGBTQIA+ community, there is still a long way to go to ensure equal treatment and protection for all. Discrimination against LGBTQIA+ community in the legal regime of marriage continues to exclude them from benefits enjoyed by married heterosexual couples. It is essential that the government take further action to address this inequality and ensure that all citizens are treated equally under the law.
 Stellina Jolly and Ritika Vohra, ‘RECOGNITION OF FOREIGN SAME-SEX MARRIAGE IN INDIA’  59(3) Journal of the Indian Law Institute 302.
 National Legal Services Authority v. Union of India AIR 2014 SC 1863.
 Justice K.S. Puttaswamy and Anr. vs. Union of India (UOI) (2017) 10 SCC 1.
 Navtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of Law and Justice AIR 2018 SC 4321.
 Chaturvedi Arpan, 'Gay couples in India ask Supreme Court to legalise same-sex marriage' (Reuters, 19 December 2022) <https://www.reuters.com/world/india/gay-couples-india-ask-supreme-court-legalise-same-sex-marriage-2022-12-19/> accessed 30 March 2023.
 Livemint, 'Same-sex marriage to be legal in India? What Supreme Court said while hearing the plea' (Livemint, 13 March 2023) <https://www.livemint.com/news/india/samesex-marriage-to-be-legal-in-india-what-supreme-court-said-while-hearingplea-11678704209925.html> accessed 30 March 2023.
 Navtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of Law and Justice AIR 2018 SC 4321.
 N. Ravichandran, “Legal Recognition of Same-Sex Relationships in India” (2014) 5(1) Journal of Indian Law & Society.
 A. Mandhani, “Shashi Tharoor submits private members bill to scrap S.377; Jaitley, Chidambaram and Bhushan opine SC must review Kaushal Judgment” (2015), available at: http:// www.livelaw.in/shashi-tharoor-submits-private-members-bill-to-scrap-s-377-jaitleychidambaram-and-bhushan-opine-sc-must-review-kaushal-judgment/accessed (accessed on March 8, 2023).
 CA 5308/2022.