Legalizing Same-Sex Marriages in India: Feasibility and Challenges
Traditional Norms and Legal Frameworks Clash as India Strives to Recognize Same-Sex Unions. Decriminalization of Homosexuality Was a Milestone, But Achieving Full Equality Remains the Goal. Exploring Strategies, Including the Potential of a Uniform Civil Code and PILs, to Foster Inclusivity and Protect LGBTQ+ Rights.
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India’s ongoing struggle to legalize same-sex marriages has brought to light the influence of traditional norms on relationships and marriage within the country. The prevailing homonormativity in Indian society has deeply impacted the legal and judicial framework, resulting in preferential treatment of heterosexual partnerships in religious legislation. While significant strides have been made to decriminalize homosexuality, the freedom, and rights of same-sex couples still remain limited in comparison to their heterosexual counterparts.
According to the Indian judiciary, the right to marry the person of one’s choice is a basic freedom secured by Article 21 of the Constitution. Women’s freedom to marry outside of their caste or religion has been recognized in instances like Shakti Vahini v. Union of India (2018), Shafin Jahan v. K.M. Ashokan and Ors. (2018), and Lata Singh v. State of Uttar Pradesh (2006). Similarly, same-sex lawsuits like Navtej Johar v. Union of India (2018), Madhubala v. State of Uttar Pradesh (2020), and Chinmayee Jena v. State of Orissa (2020) are introducing the idea of the right to select a spouse. Even though there has been a discernible change in the judiciary’s attitude towards acknowledging the legitimacy of same-sex relationships, as evidenced in some judgments from 2020 where the fundamental rights of same-sex couples were recognized, there is still a lot of work to be done before they are fully incorporated into marriage laws.
The dominance of heterosexual marriage in India has resulted in the denial of numerous advantages and rights to same-sex couples that their heterosexual counterparts enjoy. In pursuit of acceptance and equal standing in society, the LGBTQ+ community continues its battle for true inclusiveness and equality. While the decriminalization of homosexuality marked a significant milestone, achieving complete equality remains a challenging and continuous goal.
DIFFERENT PROCEDURES BROUGHT UP BY INDIA FOR LGBTQ+ COMMUNITY UNDER UNIFORM CIVIL CODE
A draft of the Uniform Civil Code (UCC) was put forward in 2017, including a comprehensive definition of marriage that encompassed both heterosexual and gay relationships. The UCC also defined partnership as the cohabitation of “any two persons,” giving live-in partnerships for same-sex and heterosexual couples without the formal institution of marriage some measure of validity. This idea of a partnership or civil union, which is accepted in many foreign nations, intends to give same-sex couples the same rights that married couples enjoy, such as adoption rights, maintenance rights, and inheritance rights. Despite offering LGBTQ+ people a chance to exercise their right to choose, the UCC was never put into practice.
RIGHTS
From the perspective of constitutional law, the Navtej Johar ruling makes the claim that there is no justification (intelligent difference) for the government to discriminate against homosexuals and heterosexuals purely based on their sexual orientation. Homosexuals are fundamentally discriminated against and are not accorded the same degree of humanity and dignity as heterosexual people when they are treated differently in a way that limits their ability to express their desires and live their lives completely. There are no intrinsic traits that essentially separate homosexuals from heterosexuals other than their sexual orientation.
Thus, discrimination exclusively motivated by sexual orientation is arbitrary and unfair. Homosexuals are denied personhood and equal rights in comparison to heterosexuals as a result of this unjustified discrimination. Recognizing homosexuals’ rights to select the partner of their choosing, regardless of gender, is critical since to do otherwise would amount to willful discrimination against them. When it comes to choosing a life partner, homosexuals should have the same options and rights as heterosexual people because the state should respect the values of equality and non-discrimination, not treat them differently. This argument aims to highlight the requirement for equality and legal protection of LGBTQ+ people’s rights.
There are two possible strategies that may be used to promote the legalization of same-sex marriage in India. First, new legislation might be added, or current marriage laws could be modified. A uniform civil code may not now be implementable in India since numerous rights, including marriage, inheritance, and adoption, are still regulated by religious laws.
However, it would be practical to change the 1954 Special Marriage Act, which is a secular marriage legislation. The Act may be made more inclusive of all gender identities and sexual orientations by removing presumptions regarding the heterosexual character of marriages and getting rid of terminology like “husband” and “wife.”
The second method is to file a Public Interest Litigation (PIL) with the Supreme Court of India to advocate for the legalization of same-sex unions. This legal strategy can be strengthened by referring to pertinent clauses in the Constitution of India, 1950, such as Article 14, which guarantees the right to equality and equal treatment, Article 15, which forbids discrimination based on sexual orientation (using the Navtej Johar case as a model), Article 19, which grants the freedom to freely express love, and Article 21, which establishes the right to marriage as a fundamental right to life.
PILs are a powerful tool for bringing up matters with broad national and societal impact, and numerous cases involving LGBTQ+ rights have previously been brought before several High Courts. An opportunity for the Supreme Court to take a firm position on the legalization of same-sex weddings in India exists via PILs, which can have more significance and influence.
LGBTQ+ people have a right to equality and are exempt from discrimination, among other fundamental rights. They deserve the same amount of validity and acceptance as heterosexual partnerships since they have the right to have relationships with persons of the same sex. Decriminalizing homosexuality is a positive step, but it does not by itself guarantee full equality because LGBTQ+ people still do not have access to basic spousal rights like adoption, inheritance, and support. Since positive legislative action has not been taken to defend the rights of the LGBTQ+ community, the existing legal status has continued harsh treatment of that group.
As the journey towards legalizing same-sex marriages continues, India stands at a crossroads, balancing tradition with the principles of equality and inclusivity. LGBTQ+ people should not be regarded as second-class citizens because legal equality is crucial. Only through earnest efforts and progressive legislation can the nation move closer to a fair and inclusive society that cherishes the rights and aspirations of every individual, irrespective of their sexual orientation.
-Hrishika Tripathi
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