The Aakhya Weekly #69 | Same-Sex Marriage in India: A ‘not so’ Landmark Judgement

In Focus: Heterosexual Assumption or Homosexual Misconception?

By Aradhana Gupta

The mystique surrounding the institution of marriage often revolves around the persistent misconception referred to as the "heterosexual assumption." It serves as the foundation for various legal and religious principles, reinforcing the notion that all individuals are expected to conform to heterosexuality. This 'assumption' is at the heart of ongoing debates and discussions thereby, necessitating a thorough evaluation. It is this very assumption that has curtailed the many rights of the LGBTQ+ community including that of marriage.

In November 2022, two same-sex couples filed a case before the Supreme Court of India, arguing that their inability to marry under Indian family law violated their fundamental rights to equality, life and liberty, dignity, free speech and expression, among others. After a 10-day hearing, the court reserved its judgment in May 2023 and issued its final verdict on October 17, 2023.

The Supreme Court of India delivered a rather underwhelming verdict on the whole issue.

Diverse Views on Same-Sex Marriage

The concept of same-sex marriage is divided into two main schools of thought:

One perspective holds that it is entirely normal, as expressed by Hendrik Hertzberg: "Marriage should be between a spouse and a spouse, not a gender and a gender."

In contrast, another viewpoint, represented by Rep. Trent Franks, expresses concern: "It not only undermines the principles of family and marriage, but also threatens the survival of the nation."

Marriage and family, traditionally considered societal cornerstones, are subject to evolving interpretations influenced by religion, culture, and law. While traditional norms dictate marriage as a union between a man and a woman of the same race, religion, or caste, the emergence of same-sex marriage represents a significant departure from these norms. The intertwining of religious beliefs with the legal implications of marriage creates challenges for the acceptance of same-sex marriage due to diverse interpretations of homosexuality across major world religions. The institution is often associated with a monogamous, opposite-sex relationship aimed at procreation, further imbuing it with cultural and religious significance. Over the years, the legal definition of marriage has expanded, even extending some marital rights to unmarried, cohabiting couples in certain jurisdictions, indicating a shift from an exclusively religious perception to a more inclusive concept of marriage.

A popular Urdu saying, "Miya biwi razi, toh kya karega Kazi?" underscores the idea that marriage is essentially an agreement between two consenting individuals.

Current Indian marriage laws favour heterosexual couples, rather than two consenting adults, despite the absence of explicit definitions of marriage in personal laws. The issue of same-sex marriage thereby, becomes a religious and legal matter, sparking debates concerning religious freedom, the separation of religion and state, and the relationship between law and morality.

Advocates for same-sex marriage in India suggest separating its religious aspect from civil aspects, similar to what is done for inter-religious marriages through the Special Marriage Act, 1954. Marriage, traditionally seen as a means of population regeneration, faces challenges when expanded to include gay and lesbian individuals. For proponents, the right to marry should be available regardless of sexual orientation, asserting that legalizing same-sex marriage would further liberate the LGBT community.

Scrapping the Colonial-Era Ban

The Indian legal system, deeply rooted in history and tradition, has historically been less progressive regarding LGBTQ+ rights. Its stance on homosexuality remained rigid until 2018. Section 377 of the Indian Penal Code, a colonial-era law from 1861, criminalized sexual activities "against the order of nature," which, though non-specific, was largely interpreted to include homosexual activities.

However, a landmark judgment came from the Supreme Court of India in 2018 in the Navtej Singh Johar versus Union of India case. The apex court decriminalized homosexuality, declaring that Section 377 of the Indian Penal Code was unconstitutional due to its violation of the rights to privacy and personal dignity. With this decision, consenting adults were allowed to engage in same-sex relationships without legal persecution.

While the decriminalization of homosexuality was a significant milestone, it did not necessarily lead to the acceptance of same-sex marriages.

The Petitions and Arguments

The Supreme Court considered 21 petitions filed by same-sex couples and activists advocating for marriage equality. The petitioners argued that the court could simply replace "man" and "woman" with "spouse" in the Special Marriage Act, which allows inter-religious, inter-caste, and international marriages. This amendment would include same-sex unions without infringing on religious personal laws.

In opposition to the petitions, the government and religious leaders contended that marriage is a socio-legal issue that should be discussed and decided by parliament. They argued that allowing same-sex marriage would disrupt societal order and go against the traditional concept of the Indian family unit, which consists of a husband, a wife, and children.

The Right to Marry: A Fundamental Right?

The central question before the Supreme Court was whether there is a fundamental right to marry under the Indian Constitution, and if so, whether the exclusion of same-sex/queer couples from this right is discriminatory. Surprisingly, the court unanimously answered both questions in the negative. In their opinions, the judges stated that marriage is an institution regulated by law, and same-sex couples do not have an inherent right to participate in it unless the law explicitly permits them to do so.

The court upheld the Special Marriage Act, of 1954, which currently permits marriages only between a "man" and a "woman." Consequently, the court concluded that there is no fundamental right to marry. However, the minority opinion acknowledged that the right to marry intersects with other fundamental rights, such as freedom of expression, freedom of movement, and the right to a life of dignity and autonomy.

Civil Unions: An Alternative for Queer Couples?

In the absence of the right to marry, the court examined whether same-sex couples have the right to enter into a "civil union" - a marriage-like arrangement that provides legal rights and protections. Once again, the majority opinion rejected this possibility, affirming that only an elected legislature has the authority to make such changes. The court emphasized the complex nature of aligning existing legal frameworks, designed for heterosexual unions, with the right of queer individuals to marry. Justice Narasimha, in the minority opinion, highlighted the need for the legislature to review the impact of altering these legal frameworks for queer couples, as it is best suited to understand and address the practical difficulties involved.

Adoption Rights for Same-Sex Couples

One of the benefits associated with marriage is the ability to adopt children. However, since same-sex couples cannot marry under Indian law, they are also unable to adopt as a couple. In 2022, the Central Adoption Resource Authority (CARA) further restricted the eligibility of same-sex couples to adopt by introducing regulations that required a couple to be in a two-year stable marital relationship. This move rendered queer couples ineligible to adopt.

The petitioners challenged the constitutionality of these regulations, and while the Chief Justice and Justice Kaul struck them down for violating the right to equality and non-discrimination, the majority opinion led by Justice Bhat found that the judiciary was ill-equipped to fully consider the implications of extending the right to jointly adopt children to same-sex couples. The court, therefore, shifted the burden to the executive, encouraging it to reconsider adoption laws in line with the best interests and welfare of children.

The Supreme Court's Verdict: Limited Progress and Unresolved Issues

The Supreme Court has played a central role in the debate over same-sex marriage, given its authority to shape marriage and equality laws. Ironically, the court's verdict primarily shifted the responsibility for decision-making to the legislature.

In the groundbreaking ruling by the Delhi High Court in 2009, the Indian judiciary acknowledged the rights of homosexuals, asserting that the law should not intrude into the private lives of consenting adults engaged in harmless activities.

However, in the context of same-sex marriage, the Supreme Court of India chose to defer to the majority in Parliament by transferring the decision to the legislative branch. The struggle for fundamental rights within the LGBT community continues, although some have sadly returned to the closet while others maintain hope.

The Court, concurring with the government, emphasized that the authority to create laws rests solely with the parliament, while the court's role is to interpret existing laws. Nonetheless, the court recognized the need to address discrimination against same-sex couples and enhance their rights and privileges. To tackle these concerns, the court accepted the government's proposal to establish a committee led by a top bureaucrat. This committee will explore the potential to grant rights and benefits to queer couples, taking into consideration their social, psychological, and emotional needs. It will also delve into access to services such as joint bank accounts and pensions, currently unavailable to same-sex couples.

The court's verdict left many activists and same-sex couples disheartened. They had hoped for a more definitive direction from the court, pushing the government to take immediate steps toward achieving marriage equality. The decision to form a committee without a specified timeline has raised concerns about bureaucratic delays and uncertainties.

The Court's judgment, while acknowledging the rights of queer individuals to choose their partners, falls short of officially recognizing same-sex marriages or civil unions. Despite affirming the principles established in prior landmark cases, such as the decriminalization of homosexuality and the recognition of a queer person's sexual autonomy as a fundamental right to privacy, the court did not provide a clear directive that marriage should be accessible to consenting adults, regardless of their sex, gender identity, or sexual orientation. Consequently, the path to achieving full recognition and equality for same-sex couples in India remains a legislative challenge.

Legislative Reforms is the Way Ahead

The judgment highlights the need for comprehensive legal reforms to make Indian family law more inclusive, gender-just, and non-discriminatory. Granting recognition to same-sex marriages or civil unions would require significant amendments to existing laws and the creation of new legislation. This complex task demands careful deliberation, extensive consultation with stakeholders, and a radical shift in the outlook towards family law.

The journey towards achieving equality and recognition for same-sex couples in India has seen both progress and setbacks. While the Supreme Court's judgment falls short of granting full recognition to same-sex marriages, it has prompted a broader conversation and highlighted the need for legislative reforms. This ongoing issue is multifaceted and complex. It is not only a fight for marriage rights but also a battle against entrenched societal norms and deep-seated biases. While legislative modification is a primary step, a larger cultural shift may be needed for same-sex marriages to become truly accepted and recognized in Indian society.

Top Stories of the Week

Government Launches Tradable 'Green Credit' Initiative

On October 13, 2023, the Union Ministry of Environment, Forests, and Climate Change launched the Green Credit Rules, 2023. This market-based incentive system is designed to encourage individuals, industries, and local entities to participate voluntarily in environmentally beneficial activities across different sectors. The program is an integral part of the 'LiFE' - 'Lifestyle for Environment' movement, which was announced by the Hon’ble Prime Minister at COP26.

The program focuses on creating quantifiable units of environmental benefit, known as Green Credits. These credits are earned by meeting specific criteria in various environmental activities and can be traded as incentives on a market-based platform. The initial focus would be laid on Water Conservation and Afforestation, among other key sectors such as tree plantation, sustainable agriculture, waste management, and air pollution reduction. The Green Credit program operates independently from the Carbon Credit Trading Scheme, 2023, but activities demonstrating climate co-benefits remain eligible for claiming carbon credits.

The Indian Council of Forestry Research and Education (ICFRE) oversees the Green Credit Program, managing its implementation and operations. A user-friendly digital platform is being developed for streamlined project registration and credit issuance. To acquire Green Credits, individuals can electronically register their activities through a dedicated website. These activities will be verified by a designated agency, with self-verification options available for smaller projects. Once the verification is successful, the Administrator will issue a Green Credit certificate, enabling trading on the established trading platform. Additionally, a Green Credit Registry is set up to maintain a record of these credits and their issuance.

The Green Credit program is anticipated to serve a two-fold purpose: firstly, it's expected to motivate industries and entities to comply with current environmental obligations. Secondly, it aims to motivate individuals and organizations to get involved in environmental initiatives by letting them either earn or buy Green Credits. However, it's important to note that Green Credits obtained for legal compliance are not expected to be tradable.

Draft methodologies for Green Credit allocation, ensuring consistency across sectors, will undergo stakeholder consultation soon.

APAAR- A Digital Repository for Students

Under the National Education Policy 2020, the Ministry of Education intends to establish a unique identification number for all students, spanning from pre-primary to higher education. Referred to as 'APAAR' – the Automated Permanent Academic Account Registry, this identity will serve as a digital repository that records personal information, academic achievements, exam results, and co-curricular accomplishments, including specialized skill training.

The registry is designed to provide a centralized platform for recording and accessing academic documents in a secure, hassle-free, and chronological fashion. This system will reduce the likelihood of misplacing critical documents, leading to the establishment of a comprehensive academic history. This, in turn, will enhance authenticity and simplify the process for students when applying for higher education, scholarships, and job opportunities.

It aims to provide valuable insights into performance monitoring, student progress tracking, and the assessment of education policies. By utilizing this data, educational institutions can adapt their teaching approaches to align with the individual needs of students, thereby improving the overall efficiency of the system. Furthermore, a notable advantage will be the ability to track dropout rates, enabling the government to reintegrate these students into mainstream education.

While the government has given assurance that data will only be disclosed to relevant authorities, many individuals are still expressing concern about data privacy, particularly considering previous Aadhar data breaches. Also, schools entrusted with the enrolment process have expressed unease about the increased administrative workload resulting from the APAAR registration process, particularly when it aligns with the pending Aadhaar verification for some students.

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