SAME-SEX MARRIAGE: THE OBLIGATION FOR LEGISLATIVE OR JUDICIARY TO FULFILL?

INTRODUCTION

According to the Hindu Marriage Act, marriage is a non-secular sacrament in which a man and a woman are secure in a permanent relationship for the physical, social, and religious needs of dharma, procreation, and sexual pleasure. A country like India holds marriage of the utmost importance regardless of any religion. The multiplicity of characteristics of people in India brings multiplicity to the type, characteristics, nature, and companionship in marriage.

But what could be said common from the very antiquity is the love that keeps two different people belonging to different families, cultures, traditions, and even religions together. Marriage as an institution has evolved immensely. From a time when parents used to choose spouses for their kids to kids having autonomy in choosing their life partners, from strict same-caste marriage rules to lenient adapting rules, marriage as an institution has revolutionized a lot.

But is it the same for all? The answer would be a big “NO”.

The LGBTQIA+ community across the globe accounts for approximately 212.3 million of the total population, which if taken into consideration is huge. The meagre of rights on their plate is a matter of concern. In the recent past, the surge of voices clubbing together and asking for what they believe is in their good faith has brought about various landmark decisions.

The decriminalization of Art. 377 broke a dam of paradoxical beliefs and brought in a bundle of rights for the people belonging to the LGBTQIA+ community. The demand for a marriage that is legally and socially acceptable is one of the many rights these people are fighting for on a daily basis. Certainly, there are many countries including countries of Europe, Africa, and even Asia have legalized same-sex marriage, but what about India?

In this blog, we shall delve into the basics of the LGBTQIA+ community and what rights they have in relation to the aspect of marriage by putting under the microscope a news article published in in The Economic Times headed “Same-sex marriage verdict: What LGBTQ community got and what it didn't.[1]”

WHAT DO WE UNDERSTAND BY LGBTQIA+?

Lesbian, gay, bisexual, transgender, and queer community (LGBTQ community), in any country, region, city, or other locality, a group of persons who identify as lesbian, gay (in the narrow sense of being a male who is sexually or romantically attracted to other males), bisexual, transgender, or queer and who feel some degree of empathy and solidarity with each other based on their shared experience of prejudice, discrimination, and disrespect or their awareness of the historical and contemporary oppression of lesbian, gay, bisexual, transgender, and queer (LGBTQ) persons. [2]

The term LGBTQ community is also commonly used to refer to groups of LGBTQ persons who support or participate in LGBTQ activism or (in its most general sense) to all LGBTQ persons, no matter their particular gender identity, culture, or geographic location. Since the early 21st century, LGBTQ communities have been understood to encompass a variety of sexual orientations and identities beyond those directly referred to in the acronym LGBTQ—among them, for example, “questioning,” “intersex,” and “agender”—and for that reason the acronym is often expanded in corresponding ways, as in LGBTQIA, or is rendered more simply as LGBTQ+.[3]

THE MARRIAGE SCENARIO

In the much-anticipated judgment delivered by a five-judge bench of the Hon’ble Supreme Court of India, headed by the Chief Justice of India, Justice D Y Chandrachud ruled against legalizing same-sex marriage. The judge's bench comprised of Justices Sanjay Kishan, S Ravindra Bhat, Hima Kohli, and PS Narasimha. An appeal was made to strike down the provisions of the Special Marriage Act (SMA) or insert words to it. The petitions had sought to include same sex marriages in the act which is meant for inert caste and inter faith marriages.

A lot of arguments were put up by both the petitioners i.e. people of the community and the respondents i.e. the state which led to the drawing of the landmark judgement which ruled against legalizing same sex marriages in India.

The main argument of the LGBTQ community was that discrimination in access to the institution of marriage on the ground of ascriptive characteristics — in particular, sexual orientation and gender identity — violated constitutional guarantees of equality (Article 14), non-discrimination [Article 15(1)], freedom of expression [Article 19(1)(a)], and privacy and dignity (Article 21).

They sought marriage rights equal to heterosexual couples. The Centre had told the SC that any constitutional declaration made by the court on this issue may not be a "correct course of action" as the court will not be able to foresee, envisage, comprehend and deal with its fallout.[4]

Justice D Y Chandrachud while delivering his judgment mentioned that the court has the duty to interpret the law and not to amend or formulate it. To interpret the law and not frame it.  He also mentioned that if the court reads down or inserts words into Section 4 of the Special Marriage Act to give marriage rights to LGBTQIA+ community members, then it would be doing the work of legislative organs which falls out of their scope.

The work of the judiciary is to interpret and the work of legislature is to formulate. The Supreme Court was also of the belief that the Right to marry is not a fundamental right, and hence cannot be claimed as a matter of right by the LGBTQIA+ community.  

WHAT DID THE COMMUNITY GET?

Though the judgment did not grant people of the community the right to marry along with all the advantanges it brings but it sure did provide people with few other rights which were no less than a boon. The CJI said that without right to marry which can be given by legislature, the LGBTQIA+ community members have the right to choose partner and right to intimate association and the state must recognize a bouquet of  their rights to ensure  such couples enjoy rights o0f association unhindered. [5] It has even issued directions to the Centre and State governments as well as the Union Territories to enforce those rights.

• To not be discriminated:

The Supreme Court has told the government to stop discrimination against the LGBTQ community based on sexual orientation. It has also called on the government to educate the public about queer rights and ensure that everyone has equal access to goods and services. The Court highlighted that homosexuality and queerness are not just urban or upper-class issues—they exist across all castes, classes, and socio-economic backgrounds.

• Protection:

The Supreme Court has instructed the government to set up a hotline and provide safe houses for LGBTQ couples. It also emphasized that intersex children should not be pressured into surgeries. Furthermore, no one should be forced to undergo hormonal therapy.

• Adoption:

The SC was of the belief that the circular of Central Adoption Resources Authority (CARA) prohibiting LGBTQIA+ couples from adopting a child is discriminatory and hence, unconstitutional. There was also difference of opinion amongst the judges regarding certain aspects especially on the applicability of adoption rules for queer couples.

• Safety from Police harassment:

“The SC has told the government to ensure that there is no harassment of LGBTQ couples by summoning them to the police station or visiting their places of residence, solely to interrogate them about their gender identity or sexual orientation. Police can't force such persons to return to their native families if they do not wish to return to them.

When a police complaint is filed by an LGBTQ person alleging that their family is restraining their freedom of movement, the police shall, on verifying the genuineness of the complaint, ensure due protection. Before registering an FIR against an LGBTQ couple, or one of the parties in such a relationship, where the FIR is sought to be registered in relation to their relationship, the police shall conduct a preliminary inquiry in terms of the Lalita Kumari vs Government of UP case to ensure that the complaint discloses a cognizableoffense.”[6]

CONCLUSION

Certainly, there are changes, changes that are noticeable and appreciable, but the question still lingers is it enough? The government time and again took steps that are extremely remarkable and are continuing to do so, but there is still a lot to achieve both theoretically and practically.

Providing a right such as that of marriage should be a basic requirement and pathway for a government to work on, to inculcate, to cherish, and to flourish. This judgment highlighted the need for the legislative organ to act profusely to draw or amend statutes for giving the people of LGBTQIA+ one of the many basics they deserve. 

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[1]“Same-Sex Marriage Verdict: What LGBTQ Community Got and What It Didn’t.” The Economic Times, 17 Oct. 2023. The Economic Times - The Times of India, https://economictimes.indiatimes.com/news/india/same-sex-marriage-verdict-what-lgbtq-community-got-and-what-it-didnt/articleshow/104491992.cms?from=mdr.

[2]LGBTQ Community | Definition, Meaning, & Flag | Britannica. 1 July 2024, https://www.britannica.com/topic/lesbian-gay-bisexual-transgender-and-queer-community.

[3]ibid

[4]“Same-Sex Marriage Verdict: What LGBTQ Community Got and What It Didn’t.” The Economic Times, 17 Oct. 2023. The Economic Times - The Times of India, https://economictimes.indiatimes.com/news/india/same-sex-marriage-verdict-what-lgbtq-community-got-and-what-it-didnt/articleshow/104491992.cms?from=mdr.

[5]ibid

[6]ibid