In India, lesbian, gay, bisexual, and transgender (LGBT) rights have progressed dramatically in recent years. However, Indian LGBT residents continue to suffer societal and legal challenges that non-LGBT citizens do not face.
The government has removed colonial-era regulations that discriminated directly against homosexual and transgender identities, as well as specifically interpreting Article 15 of the Constitution to outlaw discrimination based on sexual orientation and gender identity. However, numerous legal rights, such as same-sex marriage, have been left out.
Under legislation implemented in 2019, transgender people in India can change their legal gender after undergoing sex reassignment surgery and have the constitutional right to register as a third gender. Furthermore, several jurisdictions provide protection to hijras, a traditionally third-gender group.
The Supreme Court of India decriminalised consensual gay intercourse in the landmark case of Navtej Singh Johar v. Union of India in 2018, by reading down Section 377 of the Indian Penal Code and eliminating consenting homosexual sex between adults from its scope.
Recognition of same Sex Unions, in India
Same-sex marriages and civil unions are illegal in India. It does not, in fact, have a unified marriage legislation. Every Indian person has the ability to pick which legislation, based on their community or religion, would apply to them. Despite the fact that marriage is regulated at the federal level, the fact that there are various marriage laws further complicates the situation. None of these codified marriage acts describes marriage as a partnership between a man and a woman, nor do they expressly forbid same-sex marriages. The statutes, however, have “heteronormative roots” and have been interpreted so that same-sex partnerships are not recognised.
Background of Same-Sex Marriages
Since 1987, when the national press covered the storey of two policewomen who were married by Hindu rites in central India, the press has covered a slew of same-sex marriages across the country, mostly between lower-middle-class young women in small towns and rural areas who are unaware of any gay movement.
The reactions of family members range from support to criticism to outright persecution. Many marriages could be regarded as legally valid under the Hindu Marriage Act of 1955, which states that any marriage between two Hindus done according to the customs of one of the two partners’ groups is legal. Marriage does not require a licence, and most heterosexual Hindu marriages in India today are performed only through religious procedures, with no need for a marriage licence.
Same-sex unions have long been considered a trans-rooted alien culture-bound syndrome and associated with social dysfunction in India. As a result, LGBT organisations are working behind the scenes to develop a step-by-step strategy to address all of India’s LGBT inhabitants’ challenges and rights.
These groups had previously focused on repealing Section 377 of the Indian Penal Code and enacting nondiscrimination laws. Nonetheless, LGBT rights organisations remain upbeat and fight to secure the right to same-sex marriage, encouraged by advances made in a number of Western countries. The Aam Aadmi Party’s Medha Patkar announced in April 2014 that her party supports same-sex marriage.
In 2011, the Punjab and Haryana High Court granted legal recognition to a single same-sex marriage. After signing an affidavit stating that they met all of the conditions for a legal marriage, the couple married in Gurgaon.
Special Marriage Act, 1954
The Special Marriage Act of 1954 makes it possible for Indian citizens and Indian nationals living abroad to marry regardless of their creed, caste, or religion. While India’s marriage laws have developed over time, there is no option for same-sex couples to marry. Several legal cases involving same-sex marriages are now pending. The next step for LGBT campaigners is to lobby and demand that the government pass legislation allowing LGBTQ couples to marry, adopt children, and inherit their spouse’s assets.
The fact is that, while the Union government left the constitutionality of section 377 to the courts in 2018, it has also signalled that it will likely oppose any petition for same-sex marriage. This seems reasonable, especially since the Supreme Court only decriminalised homosexuality two years ago.
Relevance of Marriage in India
Marriage has long been regarded as one of humanity’s most powerful and vital institutions. Marriage has evolved and taken on new forms over time, but one thing has remained constant: it is still a universal fact. This is particularly true in India, where the concept is so deeply ingrained that everyone is expected to be a part of it.
Marriage is a relationship built on economic and emotional interdependence, in addition to regulating sex life. This may explain why the LGBT population in India is so keen to obtain the legal right to marry, or why there have been so many reported occurrences of gay and lesbian marriages in India including the exchange of garlands in temples or quasi-legal friendship contracts. The denial of marriage rights to LGBTQ+ people denies same-sex couples social and legal recognition, as well as state benefits enjoyed by married people. It is important to note, however, that the institution of marriage has been exclusive to some groups of individuals since its origin.
Right to marry – a legal right?
The right to marry is not recognised explicitly in the constitution. However, the supreme court construed it to be a part of Article 21 of the Indian constitution in the landmark case of Lata Singh v. State of Uttar Pradesh. In this instance of inter-caste marriage, the supreme court ruled that once a person attains major status, he or she is free to marry whoever he or she wishes.
The right to marriage is recognised at the international level in the human rights charter under the heading “right to have a family” and in many other treaties, but whether these rules are broad enough to encompass same-sex marriages remains a question. People have yet to accept inter-caste marriages, therefore accepting same-sex marriages will take some time.
However, this reason cannot be used to deny the right to marriage to the entire LGBT+ population simply because they are of a different sexual orientation than others. Apart from that, it also raises the important question of whether the majority’s view has enough weight in the eyes of the law that it can deprive an individual of their personal autonomy and fundamental right to freedom.
Development of Same-Sex Marriages
Despite the fact that there is no regulation governing same-sex couple marriages in India. LGBT persons can still marry, and the courts have recognised these types of unions in the past. There has been much discussion over the future of LGBT+ rights in India since the decriminalisation of same-sex relationships in 2018. This was inevitable, given that the Supreme Court had declared that LGBT+ Indians will be entitled to equal constitutional citizenship while reading down Section 377 of the Indian Penal Code, implying future civil rights growth.
However, events since then have not been encouraging. The Transgender Persons (Protection of Rights) Act, 2019, was enacted by Parliament despite widespread criticism that it ignored transgender people’s lived experiences in formulating the law and weakened their right to self-identification. Furthermore, while discrimination on the basis of sexual orientation and gender identity is prohibited by the Constitution, little to no effort has been taken to turn these rights into law.
Instances of Same-Sex Marriages
The Haryana court essentially recognised marriage between two lesbians after homosexuality was decriminalised in 2009. However, the Supreme Court’s repeal of Section 377 in 2019 was a more momentous decision. In 2019, a Madras High Court panel upheld a biological man’s marriage to a trans woman under the Hindu Marriage Act 1956, and the court also ordered that their marriage be registered.
At the communal level, there are some similar examples of same-sex marriage acceptability. In 1988, two police officers married at a Hindu wedding. Their marriage was welcomed and supported by their families and society despite the fact that it was not recorded.
Apart from that, for the past 150 years, same-sex marriages have been taking place among the Kutchi in the small village of Angaar in Gujarat, where both the bride and groom are men. It’s also worth noting that the majority of such same-sex marriages, particularly lesbian marriages, have occurred among small-town, lower-middle-class or non-English speaking women.
Views of Personal laws on Same-Sex Marriages
- Hinduism: Hinduism’s adherents have differing views on homosexuality as a whole. There is, however, ample literature in Hinduism that speaks volumes about same-sex relationships and, by extension, same-sex weddings. In India, carvings representing same-sex partnerships can be found in temples. In mythical stories, such as the birth of God Ayappa from Lord Shiva and Lord Vishnu, examples can be found. The storey of Bhagiratha being born from two women who had sexual relations with divine blessings, the description of homosexual actions in Kamasutra, and the Mahabharata’s queer character “Sikhandi”
- Islam: The Quran and Muhammad’s Sunnah are used to create Islamic Shariah law. In Islam, homosexuality is clearly a vice that is penalised. All four primary schools of Sunni jurisprudence have the same position. Furthermore, according to Islamic traditions, effeminate men and macho women are cursed and should be driven out of their homes.
- Christian: The only point of contention in Christianity regarding homosexuality is how homosexuals should be handled. Should they be treated as criminals or should their actions be changed? The position is clear in both cases: homosexuality is forbidden in Christianity.
In the Navtej Singh Johar decision, Justice Chandrachud stated that an individual’s desire to exercise intimacy is beyond the state’s legitimate interest. Despite providing everyone with the right to intimacy, the ruling did not require the government to enact or amend legislation to recognise alternative kinds of union or otherwise. It’s also worth noting that LGBT rights groups have proposed several revisions to the law commission in order to make family laws more inclusive of same-sex couples, but the law commission has not given them proper consideration.
However, with the Supreme Court’s decision in the NALSA case and more recently in the Navtej Singh Johar case, some of these prohibitions may now be challenged under the recognised broad framework of equality and non-discrimination.
Making laws inclusive of the LGBTQ Community
Because current laws cannot be used in the case of LGBT marriages, new legislation will have to be developed, changed, or introduced to recognise same-sex marriages. There are three approaches to make marriage laws more LGBT+ inclusive.
- According to one viewpoint, same-sex marriages could be legalised by reinterpreting, changing, or revising existing legislation, or by making the act’s language gender-neutral.
- The second viewpoint proposes that same-sex weddings be authorised after crafting a new Act that recognises the LGBT+ population as a distinct entity.
- The third point of view proposes that, because India is still not progressive enough and open to the idea of LGBT marriages, the legislature should instead give same-sex marriages a different status, such as a civil partnership, in which they may not have all of the rights of marriage but can still enjoy a variety of other significant rights.
- The Delhi High Court dismissed a court challenge made by attorneys Tajinder Singh and Anurag Chauhan seeking directives to adopt rules and regulations under the Hindu Marriage Act, 1955, to recognise same-sex marriages.
- Two ladies from Hamirpur, Uttar Pradesh, attempted to have their relationship recognised as a marriage at the local registrar’s office in 2019, but were denied due to a lack of legal provisions. Daya Shankar Tiwari, the couple’s lawyer, said they would appeal the registrar’s decision.
- Shakti Vahini v. Union of India (2018): In this case, the Indian Supreme Court ruled in March 2018 that an adult has the basic right to marry the person of their choice. The court found in this case, which concerned the practice of honour killings, which are most typically carried out by family members when a person decides to marry outside of their caste or religious group, that “an individual’s choice is a personal option.”