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Same Sex Marriage: The Ongoing Struggle For Equality

When two persons of the same gender get married, it's known as a same-sex marriage. This means that a man can marry another man or a woman can marry another woman. It's about allowing people who love each other and happen to be of the same gender to have the same legal rights and responsibilities in marriage as opposite-sex couples.

In many nations around the world, same-sex couples have this basic freedom. India is not one of those nations, though. Although it is presently illegal in India, there is a rising push to legalize same-sex unions.

The Past
In ancient writings, artwork, and culture, India has always portrayed a wide range of gender roles and sexual orientations. During this period, same-sex partnerships and homosexuality were not specifically prohibited by law.

With the introduction of the Indian Penal Code of 1860 during British colonial authority, the situation was changed. This law included Section 377, which made homosexuality illegal by declaring "carnal intercourse against the order of nature" a crime.

These restrictions from the colonial era continued after India attained independence in 1947, subjecting LGBTQ+ individuals to prejudice and legal issues.

In India, the fight for LGBTQ+ rights began gaining momentum in the latter half of the 20th century.

Lawyers, organizations, and activists started questioning Section 377's constitutionality.

Status in India

The Hindu Marriage Act, 1955, which defines marriage as a relationship between a man and a woman, governs the legal status of same-sex marriage in India. The Special Marriage Act of 1954 further limits marriage to partners of the opposite sex.

In India, same-sex unions are not recognized by law. But in recent years, there have been notable developments and legal battles that have influenced the conversation on same-sex unions and LGBTQ+ rights. The following are the key occasions that involve same-sex unions in India:

The Naz Foundation filed a public interest lawsuit in the Delhi High Court in 2001, contesting the validity of Indian Penal Code section 377, which made homosexual acts illegal. The case was delayed for a number of years.

The Delhi High Court ruled in 2009 that section 377 was unconstitutional, decriminalizing consensual same-sex acts between adults. For LGBTQ+ rights in India, the ruling was a major turning point.

In the Supreme Court, a number of individuals and organizations contested the Delhi High Court's decision. Consensual same-sex acts were once again illegal in 2013 when the Delhi High Court's decision was overturned by the Supreme Court of India, which also restored section 377.

In 2018, a five-judge panel of the Indian Supreme Court partially overturned Section 377 of the Indian Penal Code, thereby decriminalizing same-sex relationships between consenting adults. It is now legal for LGBT people to have consensual relationships. The Court has upheld the criminalization of non-consensual acts found in Section 377.

The Supreme Court's decision represented a huge win for same-sex marriage rights in India as well as a major victory for the LGBTQ community there.

The Court did not, however, specifically address the topic of same-sex marriage.

In November 2022, two same-sex couples filed writ petitions in the Supreme Court seeking legal recognition of same-sex marriages in India. The petitions were centred around the constitutionality of the Special Marriage Act, 1954.

After a series of hearing and legal proceedings involving petitioners, government opposition, and religious and child rights organisations the court deliver his judgement on 17th October 2023.

A five-judge Constitution Bench of the apex court headed by Chief Justice of India ruled in a 3:2 verdict against giving constitutional validity to same-sex marriages.

The CJI, in his opinion, concludes that the court can neither strike down or read words into the Special Marriage Act (SMA) 1954 to include same sex members within the ambit of the SMA 1954.The top court said it is for Parliament and State Legislature to formulate laws on it.

In Short, The Court left it up to Parliament or the state legislatures to decide whether or not to legalise same-sex marriage.

Questions and difficulties
Public opinion: One of the main obstacles to same-sex marriage being legalized in India is public opinion. According to a 2022 survey, 47% of Indians are in favour of same-sex unions and 37% are against them. This implies that there is still more work to be done in educating the public about the advantages of same-sex marriage.

In India, opinions on same-sex marriage remain divided for a variety of reasons. One explanation for this is the continued taboo around homosexuality in many areas of the nation. A great deal of stigma surrounds homosexuality, and a lot of people don't know the fundamentals of same-sex marriage.

The impact of religion is another factor contributing to the differences in public opinion. For religious reasons, many Indian religious groups are against same-sex marriage. It may be challenging to sway public opinion because of this vocal and powerful opposition.

Political opposition:
This is another obstacle to same-sex marriage becoming legal in India. There has been no commitment from the ruling Bhartiya Janta Party (BJP) to change same-sex marriage laws. Indeed, a number of BJP leaders have expressed their opposition to same-sex unions.

The BJP is against same-sex marriage for a number of reasons. One explanation for this is that many Hindus think marriage ought to be between a man and a woman, and the BJP is a Hindu nationalist party. The BJP is a traditionalist party, and many traditionalists have moral objections to same-sex marriage. This is another factor.

Social stigma: The stigma attached to homosexuality in Indian society presents another obstacle to the legalisation of same-sex unions. In Indian society, a lot of people hold unfavourable opinions about homosexuality. It is challenging for same-sex couples to come out and fight for their rights because of this stigma. Additionally, it hinders their ability to garner public support for same-sex marriage.

There are several reasons why homosexuality is socially stigmatized in India. The impact of religion is one of the factors. In India, a lot of religious groups consider homosexuality to be sinful. Many injustices and forms of discrimination against same-sex couples may result from this belief.

Another contributing cause to the social stigma attached to homosexuality is the lack of knowledge and understanding regarding same-sex marriage. The majority of Indians are merely unaware of the definition of same-sex marriage and the reasons for its legalization. Fear and prejudice can result from this ignorance.

Religious opposition: For a variety of reasons, some Indian religious groups are against same-sex unions. They contend that same-sex marriage cannot serve the purposes of procreation and childrearing, which are the proper domains of marriage between a man and a woman. Additionally, they think that same-sex unions would threaten the established family unit.

In India, the religious community is strongly against same-sex marriage and has considerable influence. It may be challenging to pass legislation allowing same-sex marriage because of this opposition.

Additionally, it makes it challenging to increase public support for same-sex unions.

Constitutional Challenges: The legalisation of same-sex marriage in India faces certain constitutional obstacles. According to the Indian Constitution, marriage is the union of a man and a woman. It would be necessary to change this definition in order to make same-sex marriage legal.

The process of amending the Indian Constitution is difficult and complex. A majority of state legislatures as well as two-thirds of Parliament's members must support it.

It's important to increase public support for same-sex marriage in order to overcome constitutional objections. This will facilitate the pressure on the government to make Constitutional amendments. Collaborating with legal professionals to devise tactics for contesting the current constitutional definition of marriage is also crucial.

Even with same-sex marriage being legal in India, same-sex couples may still encounter a variety of problems. Among these concerns are:

Social acceptance: While same-sex marriage is becoming more popular in India, there are still a lot of people who are against it for cultural or religious reasons. Same-sex couples may find it challenging to feel respected and accepted in their communities as a result of this social stigma.

Legal concerns: Although same-sex marriage legalization would represent a significant win for India's LGBTQ+ community, a number of legal concerns would still need to be addressed. For instance, in order to register same-sex marriages and provide marriage certificates to same-sex couples, the government would need to create new regulations and procedures. To guarantee that same-sex couples enjoy the same privileges and rights as heterosexual couples�such as the ability to adopt children and inherit property�the government would also need to make changes to existing laws.

Economic obstacles: There might be some financial obstacles to same-sex marriage legalization. To guarantee that same-sex couples enjoy the same privileges and rights as heterosexual couples, such as the ability to file joint taxes and obtain family health insurance, the government would need to make changes to its legal framework. This may come at a high cost to the government.

Performing problems: When same-sex marriage becomes legal, there will be several implementation issues. The government will have to create new procedures, for instance, for registering same-sex marriages and providing marriage licenses to same-sex couples. Officials from the government must also receive training on how to apply the new rules and regulations.

Breach of Essential Rights

The prohibition of same-sex marriage in India exposes the LGBTQ community to numerous violations of basic rights. These consist of:
Article 14: Within India's borders, equal protection under the law and equality before the law are guaranteed by Article 14 of the Indian Constitution. This implies that everyone is equal under the law and ought to be treated as such. Nonetheless, same-sex couples are denied the same legal rights and protections as opposite-sex couples due to the non-legalization of same-sex marriage. The right to equality before the law has been flagrantly violated by this.

Article 15: Discrimination on the basis of religion, race, caste, sex, or place of birth is forbidden by Article 15 of the Indian Constitution. It follows that these factors cannot be used as grounds for discrimination against any individual. Nonetheless, same-sex couples face discrimination due to their gender identity and sexual orientation when same-sex marriage is not legalized. The Constitution's Article 15 is being clearly broken by this.

Article 19: The freedoms of speech, assembly, association, and movement are guaranteed by Article 19 of the Indian Constitution. This implies that individuals are free to voice their opinions, congregate in peace, create associations, and travel around India without restriction. However, the freedom of expression and assembly for same-sex couples is restricted due to the non-legalization of same-sex marriage.

For instance, same-sex couples might be reluctant to discuss their relationship in public due to concerns about violence or discrimination. They might also be afraid of being harassed or arrested, which prevents them from gathering peacefully to demand their rights. The Constitution's Article 19 is being clearly broken by this.

Article 21: The right to personal liberty and life protection is guaranteed by Article 21 of the Indian Constitution. This implies that everyone has the right to lead dignified lives and to make their own decisions regarding their private lives. However, same-sex couples are denied the freedom to live their lives with dignity and to make their own decisions regarding their personal lives because same-sex marriage is not legal. The Constitution's Article 21 has been flagrantly violated by this.

The LGBTQ community's fundamental rights are being violated by India's non-legalization of same-sex marriage. Regardless of a citizen's gender identity or sexual orientation, the Indian government has an obligation to preserve the Constitution and defend their rights. In order to guarantee that same-sex couples enjoy the same legal rights and protections as opposite-sex couples, the government must take action to legalize same-sex marriage.

Final say:
In India, same-sex marriage is a contentious issue with strong views on both sides. But it's crucial to keep in mind that same-sex couples are also people, and as such, they should have the same rights and protections as heterosexual couples.

Legalizing same-sex unions would be a significant advancement for human rights and equality in India. The nation will benefit from this positive development. Numerous social, economic, and cultural advantages will result from it. Even though there are still some issues to be resolved, same-sex marriage is becoming more and more legal in India.

We can contribute to the realization of this goal by educating the public, garnering support from legislators, and assisting organizations that are attempting to legalize same-sex unions. It would send a message that all Indians are valued and respected, regardless of their sexual orientation.

  1. A chronology of how the case reached SC's Constitution Bench -
  2. Unpacking Indian Supreme Court's verdict on same-sex marriage -
  3. India Today, '10 instances of homosexuality among LGBTs in ancient India', India Today (10 July 2018)
  4. Indian Penal Code 1860
  5. Naz Foundation v Government of NCT of Delhi and others, WP(C) no 7455/2001
  6. Navtej Singh Johar & Ors v Union of India Thr Secretary Ministry of Law and Justice, WP (C) no 76/2016

Award Winning Article Is Written By: Mr.Sudhanshu Kumar
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