The debate surrounding same-sex marriage in India has been a landmark moment in the nation’s legal and social history. While the decriminalization of homosexuality in 2018 in the case of Navtej Singh Johar v. Union of India after a long fought battle was a significant step forward, the question of legalizing same-sex marriage remained a complex legal battle. This analysis aims to explain why the Supreme Court, in its 2023 hearings in the Supriyo v.Union of India, did not grant legal recognition to same-sex marriage, focusing on the legal reasoning behind the decision.
The Existing Legal Framework: A Heteronormative Foundation
Indian marriage laws are primarily governed by personal laws and the Special Marriage Act which is a central legislation, and although states can have state-based amendments and laws, a technicality might make that step ineffective which you can read from the following blog: Is There Any State Where Gay Marriage Is Legal?
Key legal texts, such as the Special Marriage Act, 1954, and personal laws like the Hindu Marriage Act, 1955, define marriage as a union between a “man” and a “woman.” This existing legal framework, rooted in heteronormativity, presented a substantial hurdle for legalizing same-sex marriage.
Human rights groups have been protesting and in turn demanding gender neutral marriage and adoption laws. The activists call it to be a legitimate expectation post the 2018 decriminalisation. In 2022, MP Supriya Sule of NCP had introduced a bill in Lok Sabha to legalise the same-sex marriage through amendment in Special Marriage Act and from then there has been no developments w.r.t that.
When decriminalising the same-sex relationships, the SC said, “(LGBTQ) are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution”. While in Shafin Jahan v. Asokan K.M., the SC said. “right to marry a person of one’s choice is integral to Article 21 of the Constitution”
The 2023 Supreme Court Hearings: A Landmark but Inconclusive Moment
In 2023, the Supreme Court heard a series of petitions seeking legal recognition for same-sex marriage. These hearings were historic, bringing the issue for the first time from the debates and discourses of academicians and human right groups to the forefront of national discourse. However, in the unfortunate turn of events, the Court’s final decision did not legalize same-sex marriage.
Key Legal Reasoning Behind the Court’s Decision on Same-Sex Marriage:
The Supreme Court’s decision rested on several key legal principles:
- No Explicit Fundamental Right to Marry: The Court determined that while the right to life and personal liberty under Article 21 of the Indian Constitution encompasses various aspects of personal autonomy, it does not explicitly guarantee a fundamental right to marry. This distinction is crucial in Indian Constitutional law. Fundamental rights are subject to a higher level of judicial protection and can only be restricted under specific circumstances. The absence of an explicit fundamental right to marry meant the Court had more leeway in its decision.
But the SC offered us a very contradictory argument to not constitutionally recognize a right to marriage. The court first mentioned the right to privacy and right to education were recognized because of their alignment to Constitutional values, without any explicit mention.
The court, while denying the right to marriage, citing no explicit recognition by the Constitution, later argued that the Constitution does provide for “respect for the choice of a person whether and when to enter upon marriage and the right to choose a marital partner.”
The conclusion seemed a way to reflect away from the issue rather than giving it a proper thought as given to the privacy and right to education.
- Emphasis on Parliamentary Prerogative and Separation of Powers: A core principle of India’s democratic system is the separation of powers between the judiciary, the executive, and the legislature. The Court emphasized that the power to create and amend laws, particularly those with significant social implications like marriage, rests with the Parliament. The Court suggested that any substantial change to the legal definition of marriage should be undertaken through legislative action, reflecting the democratic will of the people. This deference to Parliament was a key factor in the Court’s decision regarding same-sex marriage.
The court said, “There is no universal conception of the institution of marriage, nor is it static. Under Articles 245 and 246 of the Constitution read with Entry 5 of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer marriage”
The following argument hangs in between two extremes, first it’s understandable that such a change would need a full overhaul of various acts yet the court had in 2018 repealed the part of S. 377, so why not this time? On the other hand, declaring the full SMA unconstitutional would undo the progress made by SMA over the years.
- Considerations on Adoption Rights:
The judgment argues that current adoption laws only allow joint adoption for married couples and including same-sex couples would require significant changes to laws governing guardianship, inheritance, and other family rights. The court also emphasizes the importance of prioritizing a child’s best interests, suggesting this could raise challenges in same-sex unions under the existing framework.
The court and the government cited a paper published in the USA which said that children living with same-sex couples were twice as likely to have ADHD. The court cites more such examples to show the complexities involved in such adoptions.
- Considerations of Societal Impact and Existing Laws: The Court also considered the potential societal impact of legalizing same-sex marriage and the need for careful consideration of existing personal laws and their implications. This included concerns about potential conflicts with existing religious and cultural practices.
The court said, “Marriage laws do not stand in isolation; they interact in multifarious ways with succession, inheritance, and adoption laws, to name a few. The content of the right claimed by the Petitioners is such that it clearly places positive legislative obligations on the State… The creation of social institutions and consequent re-ordering of societal relationships are ‘polycentric decisions’…decisions that cannot be rendered by one stroke of the judicial gavel.”
What This Means for Same-Sex Couples and the Future of Same-Sex Marriage:
Now, the Supreme Court’s decision, while not immediately granting legal recognition to same-sex marriage, leaves open several possibilities for future change:
- Legislative Action by Parliament is Key: The most likely and legally sound path to legal recognition is through the enactment of a new law or amendments to existing laws by the Parliament. This would require political will and consensus among lawmakers to address the complex legal and social implications.
- Potential for Future Judicial Review: While the Court deferred to Parliament in this instance, future legal challenges could be brought if legislative action is not taken. These challenges could focus on arguments related to fundamental rights, discrimination, and evolving societal norms.
- Possibility of Civil Unions or Alternative Legal Frameworks: The Court also alluded to the possibility of recognizing civil unions or other legal frameworks to provide same-sex couples with legal recognition and protection, even if not through formal marriage. This could be a potential compromise or stepping stone towards full marriage equality.
The Global Context of Same-Sex Marriage:
Many countries have legalized same-sex marriage, providing a comparative legal context. These international developments highlight a global trend towards greater recognition of LGBTQ+ rights. More information on the recognition by other countries can be found in the Is There Any State Where Gay Marriage Is Legal?
Conclusion: A Complex Legal Landscape with Potential for Future Change Regarding Same-Sex Marriage
The current legal landscape surrounding same-sex marriage in India is intricate. While the Supreme Court did not directly legalize same-sex marriage in its 2023 hearings, the decision has spurred a crucial national conversation. The future of same-sex marriage likely hinges on legislative action, though further judicial review remains a possibility. The question of same-sex marriage remains a central point of legal and social debate in India.
Note:
- This blog post is for informational purposes only and does not constitute legal advice.
- The specific laws and regulations may vary and are subject to change.
- It is always recommended to consult with a legal professional for personalized guidance on any legal matter.
- The examples provided are illustrative and may not reflect actual case scenarios.
Disclaimer: This blog post is for informational purposes only and should not be considered legal advice. If you are facing a legal issue, consult with a qualified attorney.
Also Read : Is There Any State Where Gay Marriage Is Legal?