New Delhi

India’s Supreme Court finished hearing a clutch of petitions urging the court to validate same-sex marriage in the country, back in May 2023. A five-judge constitutional bench comprising Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha heard the arguments, and will soon pass their judgement on pleas seeking recognition of same-sex marriage under the Special Marriage Act, Foreign Marriage Act and the Hindu Marriage Act. 

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Though the apex court decriminalised homosexuality in 2018, same-sex marriages remain illegal and unrecognised by Indian laws.  

The ruling Bharatiya Janata Party (BJP) has repeatedly opposed any recognition of same-sex marriages, even though Indian society, has begun to gradually accept the LGBTQ+ community.  

When did the case reach the apex court? 

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On November 25 last year, two gay couples approached the top court seeking recognition of same-sex marriage under the Special Marriage Act, following which the court issued notices on the plea. 

They wanted the court to make provisions so that the Special Marriage Act be made gender-neutral by striking out gender-or sexuality-based discrimination. 

The apex court had noted that a similar case was taken by the Kerala High Court, in which the Union Government made a statement through the Deputy Solicitor General that the ministry was taking steps to get all the writ petitions, including the writ petition before the High Court of Delhi, transferred to the SC. 

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Then, a two-judge bench led by Chief Justice DY Chandrachud issued a notice and sought a response from the central government, and the Attorney General for India. 

Later on January 6, 2023, the apex court ordered the transfer of all petitions seeking legal recognition for same-sex marriages pending before different high courts. 

What is the government's opinion? 

The Narendra Modi-led Bharatiya Janata Party (BJP) government has opposed in the Supreme Court a batch of pleas seeking legal validation of same-sex marriage, saying it would cause complete havoc with the delicate balance of personal laws and accepted societal values. 

In an affidavit filed before the apex court, the government submitted that despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country. 

Calling the petitions seeking the right to same-sex marriage an “urban elitist concept far removed from social ethos of the country”, the submission filed by the government stated that recognition of marriage is essentially a legislative function and that the courts should refrain from deciding.

“A decision by the court in recognising the right of same-sex marriage would mean a virtual judicial rewriting of an entire branch of law. The court must refrain from passing such omnibus orders. Proper authority for the same is appropriate legislature...Given the fundamental social origin of these laws, any change in order to be legitimate would have to come from the bottom up and through legislation...a change cannot be compelled by judicial fiat and the best judge of the pace of change is the legislature itself,” stated the application.

Which way are the courts leaning?

According to Article 21 of the Indian Constitution, "no person shall be deprived of his life or personal liberty except according to procedure established by law.” This fundamental right is available to every person, citizens and foreigners alike.

The courts have time and again cited this article while ruling in favour of contentious issues like inter-faith and inter-caste marriages, and ordered the police and other rights organisations to give them protection whenever they feel or are threatened by parents or society, noting that “all adults have the right to marry a person of their choice.”

In 2018, when the court decriminalised homosexuality, it noted, “Members of the LGBTQ+ community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of the law."

“The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation.”

Why do the petitioners want legal validation?

Even though India has accepted people of the LGBTQ+ community, and they have been allowed to live together, they still cannot marry each other, as there is no legal provision that gives them the right to do so.

The problem for LGBTQ+ couples arises when they want to adopt a child or have a kid through surrogacy.

As per the Indian surrogacy laws, which was amended in 2016, single parents, homosexuals, live-in couples, and foreign single individuals are prohibited from having children through surrogate mothers.

The same rule kicks in when trying to adopt children in India.

Apart from that, same-sex couples are not entitled to rights to inheritance, maintenance and tax benefits. After a partner passes away, they cannot avail benefits like pension or compensation.

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