Delhi, November 6, 2023: The five-member constitutional bench of the Supreme Court declined to provide legal recognition to same-sex marriages, leaving the matter in the hands of the legislature to formulate the necessary laws.
The bench comprised Chief Justice of India D. Y. Chandrachud, Justice S. Ravindra Bhat, Justice Sanjay Kishan Kaul, Justice Hima Kohli, and Justice P. S. Narasimha. The minority opinions of Chief Justice D.Y. Chandrachud and Justice Sanjay Kishan Kaul supported the idea that constitutional authorities should establish a regulatory framework for acknowledging the civil unions of adults in same-sex relationships.
Since the landmark judgment decriminalizing Section 377 of the IPC in 2018, there has been slow and gradual progress. However, the LQBTQIA+ community has long faced discrimination and continues to do so. Gaining legal recognition in India has been a challenging journey.
The Historical Perspective:
The concept of queer love is not new in India and is deeply embedded in Indian society. The evidence can be found in Indian mythology, architecture, and various art forms. Representation can be seen in ancient texts like the Rig Veda and the Bhagavata Purana.
In Vedic literature and the Bhagavata Purana, the relationships portray intense love, with the two individuals often riding a shark or crocodile together or sitting side by side on a golden chariot drawn by seven swans. One story even mentions how these two male gods had a child when their semen fell on a termite mound, a concept resembling modern-day surrogacy. Another instance is the Ardhanarishvara, a representation of Mahadeva as half man and half woman.
Shikandhi, the son of King Draupad, was a reincarnation of Amba, who had received a boon from Shiva for revenge against Bhishma in her next life. In the Mahabharata, Shikhandi used her identity against Bhishma, as he refused to fight a woman.
Homosexuality is even depicted in temple architecture, with images at Khajuraho depicting women erotically embracing other women and men displaying their genitals to each other. This demonstrates that homosexual acts were indeed practiced in ancient India.
While some scriptures did not approve of homosexuality and classified it as an “unnatural offense”, references indicate that such practices were in existence. For example, the Narada Purana condemned those who discharged semen in non-vaginal ways. The Manusmriti provided punishments to homosexual men and women, deeming such activities liable for punishment.
From 1861 to 2023: A Chronology of Landmark Judgments
The provision of Section 377 was introduced by authorities during British rule in 1862 and served as the legal basis for the criminalization of what was referred to as “unnatural offenses”. Modeled on the Buggery Act of 1533, this section was drafted by Thomas Macaulay in 1838 and enforced in the 1860s.
2001: Naz Foundation v. Government of NCT Delhi
In 2001, Naz Foundation, a non-governmental organization dedicated to HIV/AIDS intervention and prevention, challenged the constitutionality of Section 377 of the Indian Penal Code in the Delhi High Court. The Delhi High Court initially dismissed the petition in 2004 for lack of cause of action. However, the Supreme Court of India, upon civil appeal, set aside the dismissal and instructed the Delhi High Court to consider the petition on its merits.
The petitioners argued that Section 377 violated fundamental rights, including the right to health, privacy, and equality guaranteed by Articles 14, 15, and 21. The court agreed and recognized that the criminalization of homosexual conduct isolated individuals and hindered access to information about HIV/AIDS prevention. The High Court’s decision, reached in July 02, 2009, declared that Section 377 was contrary to fundamental rights.
2013: Suresh Kumar Kaushal v. Naz Foundation Case
In this case, the Supreme Court overturned the Delhi High Court’s 2009 decision to decriminalize Section 377. The two-judge bench found the previous ruling legally unsustainable and noted that the High Court had disregarded the fact that a small fraction of people constituted the LGBTQ+ community. The Supreme Court concluded that Section 377 did not violate basic rights and was not discriminatory. The Court emphasized that legislation should be left to parliament to determine the morality of a law.
2014: National Legal Services Authority v. Union of India
In 2012, the National Legal Services Authority, an Indian statutory body established to provide legal representation to marginalized sections of society, filed a petition in the Supreme Court. The petition was signed by a non-governmental organization representing the transgender community and an individual identifying as transgender. The petition sought a legal declaration of their gender identity, different from the one assigned at birth.
The transgender community argued that their inability to express themselves in binary gender terms denied them equal protection under the law and the benefits of social welfare schemes guaranteed by Articles 14 and 21. They also sought legal recognition as a backward community and the right to express their self-identified gender on government forms.
The judgment, known as the Nalsa judgment, revolved around gender identity and became a landmark in history. The court distinguished between “biological sex” and “psychological sex” and emphasized the importance of identification based on psychological sex. As a result, transgender individuals gained recognition as the “third gender”, with fundamental rights equally applicable to them and the right to self-identification.
2017: Justice K.S. Puttaswamy v. Union of India
In 2017, a retired judge of the Madras High Court challenged the validity of the Aadhaar scheme, arguing that it violated the right to privacy. This judgment, also known as the Privacy Court judgment, affirmed that the right to privacy is a part of life and personal liberty under Article 21. The nine-judge panel stated that the right to privacy is an inherent and integral part of the Constitution, guaranteeing fundamental rights. The judgment paved the way for landmark rulings, such as the decriminalization of homosexuality in Navtej Singh Johar v. Union of India (2018).
2018: Navtej Singh Johar v. Union of India
Five petitions filed by S. Johar and four others, well-known LGBTQ+ activists, claimed that Section 377 was unconstitutional because it discriminated against the LGBTQ+ community based on sexual orientation, a core attribute of privacy. They argued that sexual orientation and privacy were fundamental rights guaranteed under Articles 14, 19, and 21. The five-judge bench unanimously declared Section 377 unconstitutional, decriminalizing homosexuality and marking a significant victory for the LGBTQ+ community.
2023: Supriya Chakraborty and Anr v. Union of India
On November 14, 2022, two same-sex couples filed petitions in the Supreme Court seeking legal recognition of marriage in India. The petitions challenged the constitutionality of three acts: the Special Marriage Act 1954, the Hindu Marriage Act 1955, and the Foreign Marriage Act 1969.
However, the court decided to consider the Special Marriage Act of 1954. This Act recognizes marriage only between a “male” and a “female”, which discriminates against same-sex couples, denying them marital benefits such as adoption, surrogacy, employment, and retirement benefits. The bench delivered its verdict on October 17, 2023, and dismissed the petitions, causing disappointment to hundreds of hopeful individuals.
Had the verdict not been disposed of, it would have marked a significant step toward progress and inclusivity. The journey has been long and challenging, and it will likely continue to do so. Legal recognition would have a historical impact, allowing countless same-sex couples to formalize their relationships and enjoy the same legal benefits as opposite-sex couples while also sending a powerful message of tolerance and compassion.
Edited by: Sri Soudamini Konka
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