Supreme Court of India has delivered its long-awaited verdict on the issue of same-sex marriage, a matter that has sparked nationwide debates and drawn global attention. Same-sex marriage in India refers to the union between two individuals of the same gender, but unlike several countries across the world, it does not yet enjoy legal recognition under Indian law. While the LGBTQIA+ community has made significant progress over the years—from the 2001 Naz Foundation petition to the historic 2018 judgment decriminalizing homosexuality—marriage rights remain out of reach. Traditional religious groups continue to oppose same-sex marriages, citing cultural and moral grounds, and the government maintains that the authority to redefine marriage rests with Parliament, not the judiciary. Against this backdrop, the Supreme Court’s 2023 verdict, which declined to legalize same-sex marriage but emphasized protection against discrimination for queer couples, marks a critical juncture in India’s journey towards equality.

Journey of Same Sex Marriage in India

• General Definition: Same sex marriage in India refers to marriages between two individuals of the same gender.
• Opposition: Traditional religious groups have opposed homosexual marriages as they believe them to be against the natural order.
  • In some countries, homosexuality itself is criminalized and same sex marriage looks a distant dream. 

Timeline for Same Sex Marriage Right in India

• 2001: the Naz Foundation filed a public interest litigation (PIL) in the Delhi High Court challenging the constitutionality of Section 377. 
• 2009: Delhi High Court declared Indian Penal Code Section 377 unconstitutional and decriminalized homosexuality. 
  • This decision of the High Court was overturned by the Supreme Court of India in 2013, which reinstated Section 377. 
• 2018: Supreme Court’s constitutional bench, in Navtej Singh Johar v. Union of India judgment, overturned the previous decision and decriminalized homosexuality once again.
• 2023: Supreme Court ruled in a 3:2 verdict against legalizing same-sex marriage in India.

Legalizing Same Sex Marriage in India: Debates and Challenges

• Petition: The court was hearing a bunch of petitions, asking for legalization of Same Sex Marriage in India, citing rights of LGBTQIA+ people.
• Opinion of States: The court had sought responses from seven states on the issue of same sex marriage in India. 
  • The governments of Rajasthan, Andhra Pradesh and Assam refused to accept same sex marriages in their respective states.

• Opinion of the Centre: The central government had cautioned that constitutional declaration made by the court on the petitions seeking legal validation for same sex marriage in India may have negative fallout.
  • The Centre also says that the decision on marriages can only be made by the Parliament.
• Alternative Suggestion: The centre had also decided to form a committee headed by the cabinet secretary to examine the administrative steps for addressing “genuine human concerns” of same-sex couples without giving their union a legal recognition.

Challenges and Prospects: Same Sex Marriage in India and LGBTQ+ Rights

• Legal Status: Currently, same sex marriage in India do not enjoy legal status in India due to rigid definition of gender in the laws.
  • India’s laws define marriage as a union between a man and a woman.
• Associated Rights: Rights associated with marriages, such as inheritance rights, joint property ownership, and adoption rights are not provided.
• Status of Homosexuality Law: The Section 377 of the IPC, which criminalized homosexuality, was discontinued by the Supreme Court of India in 2018. However, couples still face discrimination.
  • The Section 377 of the Indian Penal Code was introduced in 1860, which criminalized homosexual acts. 
• Court’s Previous Opinion: The Delhi High Court in 2017 declared that same-sex couples are entitled to be in a stable relationship, but refused to legalize same-sex marriage.

Recent Supreme Court’s Verdict on Same sex Marriage in India:

• Beyond Scope: The court has said that the issue of same-sex marriage was beyond its scope and instead must be decided by the Parliament of India.
• Protecting Homosexual Couples: The court directs that relationships between queer couples should not be ignored or discriminated against by the state.
• Definition of Marriage: The court has also opined that it is incorrect to categorize marriage as a stagnant and unchanging institution.
  • The definition in the Special Marriage Act must not be a barrier for making a legal framework for same-sex marriages.
• Interference: The court does not accept the centre’s stand that the issue of same sex marriage can only be dealt with the Parliament and not by the SC. It opines that the doctrine of separation of powers cannot come in the way of enforcing fundamental rights.
• Adoption of Children: The court has however ruled that same-sex couples have the right to adopt children.

Same Sex Marriage in India vs Across the World:

Conclusion

• Homosexual couples face stigma and marginalization from their families, communities, and workplaces.
• Legalizing same sex marriage in India  would not only have provided legal recognition and protection for LGBTQ+ couples but also could promote greater social acceptance and reduce discrimination against the marginalized communities.

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