Recently, The Supreme Court accepted the collection of petitions asking for
India's same-sex marriage law to be changed. There is a bundle of such
petitions, where the LGBTQ+ community is struggling and fighting for their
rights for years.
The acceptance of homosexuality has increased recently in many nations, and laws
and public perceptions of the LGBTQ+ population have changed. However, there is
still a strong stigma attached to homosexuality in various parts of the world,
and many people who identify as homosexual may experience prejudice, harassment,
or even violence as a result of their sexual orientation. Homosexuality has been
documented and recognised throughout human history.
Despite this, homosexuality has frequently encountered opposition. For much of
recorded history, homosexuality was seen as a crime, with the death penalty an
option in some communities. However, there has been a growing trend in recent
decades in favour of accepting homosexuality and granting the LGBTQ+ population
equal rights. Many countries currently forbid discrimination based on sexual
orientation, and in some, same-sex couples are allowed to marry and have
In the United State of America the Supreme Court's decision in the case of
Obergefell v. Hodges, same-sex marriage became legalised state-wide in 2015.
Through this decision, it was established that same-sex couples and opposite-sex
couples both had the constitutional right to marry. In India, by holding that
Section 377's applicability to acts of homosexuality between consenting adults
was unconstitutional, the Supreme Court of India decriminalised homosexuality in
2018. In a society like India, this decision would be regarded as revolutionary.
Recently, The Supreme Court accepted the collection of petitions asking for
India's same-sex marriage law to be changed.
Society Is Not Ready
Homosexuality is considered problematic for Indian society, there are ample
arguments against legalizing same-sex marriage in India, and all of them focus
on what's the problem but very few people are concerned about the solution to
this problem, here are some arguments against legalizing homosexual marriage in
India with their solutions.
The Argument that society is not ready for such a change or society is not ready
to accept this change is flawed as this argument is baseless because whenever
changes are proposed society resists the change as it would never want to forego
its prevailing norms. How will one get to know that society is ready for change,
is there any yardstick to measure that yes it's the time to change, the answer
is no. It is only the legislature and judiciary who can change the societal
norms and can make society more tolerant of such progressive steps.
Whenever a new law is proposed to change the prevailing norms, the very first
argument steps in is that society is not ready for this law right now for
example when the Hindu code bill was proposed in the 50s than also it was argued
that Indian society is not ready to accept this change, on the other hand, it
was also proposed if not Hindu code bill than UCC would be a better option but
again the same argument was raised, so Indian society was not ready in 50s for
UCC and after almost 75 years it is not ready yet for the same, than when will
the society be ready who will decide that society is ready so what's the climax
than, when will the society be ready to accept change?
Then also we were not ready for Hindu personal laws but today our Hindu society
is governed by those laws only. Therefore a law can change society, the
legislature has the power and capacity to change. Law is law because it is
passed by the parliament, we follow the law because it is formulated by the
competent authority and we are bound to follow it, people may disagree with the
law but cannot disobey the law just because they disagree. Hence legislature
should take progressive steps.
An apt example could be the Decriminalisation of section 377 of the IPC.
There was a lack of correspondence when section 377 was read down, and arguments
were raised like:
"If Section 377 is declared unconstitutional, then the family system which is
the bulwark of social culture will be in shambles, the institution of marriage
will be detrimentally affected and rampant homosexual activities for money would
tempt and corrupt young Indians into this trade."
Despite such disagreements, the judiciary had taken the progressive step and now
this is an established rule that there is nothing wrong with the union of
homosexuals. Therefore, it can be said that disagreements and counterarguments
are always there but power holders must take progressive steps. So no bell rang
in 2018 that yes it's time to change, society resisted that time also and it is
resisting now as well. Hence the burden is on the judiciary and legislature to
ensure that everyone has equal rights.
The idea of same-sex marriages is not acknowledged in our culture or legal
In the line of arguments, another argument is that. "Our culture and law don't
recognize the concept of same-sex marriages",
But when we talk about Indian culture several instances show that homosexuality
was prevalent in ancient India for example.
Homosexuality in Indian culture is depicted in the Khajuraho temple in Madhya
Pradesh. The temples were built between the 9th and 11th centuries and are known
for their intricate carvings depicting various aspects of Indian life and
Among these carvings are depictions of same-sex couples engaged in erotic acts,
which suggests that homosexuality was not only accepted but also celebrated in
certain Indian societies during this period. These carvings include images of
men engaged in sexual acts with other men, as well as women engaged in sexual
acts with other women.
It's important to note that the presence of these carvings does not necessarily
indicate that homosexuality was universally accepted or even widespread in
ancient India. Rather, it suggests that same-sex relationships were not entirely
taboo or hidden in certain communities and that they were considered a part of
the human experience.
Homosexuality became taboo after the colonial rule in India. During the colonial
period, British laws criminalizing homosexuality were introduced in India, and
same-sex relationships were stigmatized and marginalized. After India gained
independence in 1947, these laws remained in place, and homosexuality continued
to be seen as taboo and deviant behaviour.
Also even if it is said that the law does not recognize homosexual marriages, is
not a strong argument .when there is a vacuum, and no law is there to govern the
issue then it cannot be said that if the law is not there then this problem
cannot be solved, the idea should be that if there is no law than law must be
The fundamental duty of the legislature is to make laws. When there was no law
to govern triple talaq, then the law was created to curb the issue, legislature
cannot argue that there is no law for governing this issue, so nothing can be
done. The legislature is supposed to make the law to eradicate the raising
One of the problems proposed is that if adoption rights are given to homosexual
couples then what would be the impact on the child, if we look into the
consequences of the upbringing of a child by two mothers or two fathers would do
no wrong to the child as the child will develop the understanding that there are
people like his/her parents and this is normal, such upbringing would normalize
homosexual couples of the coming generations.
Moreover if one is arguing that a child needs the affection of both mother and
father then on contrary we have adoption laws where a single parent can adopt,
and this is prevalent in Indian society and has caused no such harm to the child
or the society. Hence to make the coming generation tolerant towards
homosexuals, the adoption right to homosexuality would help at great length,
furthermore it would destigmatize homosexuality and homosexuals will be
considered normal people in the future as opposed to today's situation.
Violation of fundamental rights:
The Indian Constitution guarantees the fundamental rights of every citizen,
including the right to equality, freedom, and dignity. Denying the right to
same-sex marriage on the grounds of sexual orientation is a violation of these
Here are some reasons why:
- Equality before the law:
Article 14 of the Indian Constitution guarantees that every person is equal
before the law and has equal protection under the law. Differentiation under
Article 14 is only permitted where there is an intelligible differentia
between the groups being discriminated against and when the discrimination
has a reasonable nexus to the goal being pursued. In this case, the
prohibition against homosexual marriage falls short of passing the legal
standard because there is no intelligible differentia for its prohibition.
"The Supreme Court decriminalized homosexuality in the Navtej Johar
decision, which is consistent with other studies that have shown that
homosexuality is "normal. "Therefore, the state cannot distinguish between a
heterosexual marriage and a homosexual marriage and declare homosexual
marriage to be illegal." Denying the right to same-sex marriage violates
this principle of equality as it discriminates against individuals based on
their sexual orientation.
- Right to life and personal liberty:
Article 21 of the Indian Constitution guarantees the right to life and
personal liberty to every person. 'In the case of Francis Coralie Mullin v.
Administrator, Union Territory of Delhi, the Supreme Court declared that the
Right to Dignity is a fundamental right. Therefore, prohibiting homosexual
marriage would be a breach of one's right to dignity as acknowledging one's
gender identification is at the core of that right and marriage is a vital
institution for transforming a person into a social being, as has been
established.' Moving on, it was determined in the case of Anuj Garg v.
Hotel Association of India that Article 21 also protects individual
Homosexual marriages are no different from heterosexual marriages in that
they fall under the positive right of people to choose their own life
decisions. Denying same-sex couples the right to marry violates their right
to personal liberty and autonomy.
'Article 15 of the Indian Constitution prohibits discrimination on the
grounds of religion, race, caste, sex, or place of birth. It's noteworthy to
note that "gender" is not mentioned in this context. It is important to know
that "sex" and "gender" are two separate concepts. While "sex" is a
biological and medical concept that depends on chromosome number, hormones,
genitalia, and other varied secondary attributes, "gender" refers to one's
sense of self, feelings, and what they identify as.'
The Supreme Court ruled in the famous case of NALSA v. Union of India (2015)
that "gender" is a part of the phrase "sex. "As a result, present laws and
policies that forbid homosexual couples from getting married are solely
based on their "gender" and are therefore obviously in contravention of
Article 15. Denying same-sex couples the right to marry is discriminatory
and violates this constitutional provision
The government can make separate legislation to govern the marriages between
same-sex couples as the US government made separate legislation (The Respect for
marriage act) to govern same-sex marriage.
The government should think in this way:
Evolve definition of marriage: The government can make a gender-neutral
definition of marriage by including terms such as 'spouse' or 'party' in the
place of wife and husband. The government can take references from other
countries which recognize same-sex marriage. Definition of marriage: In the
Netherlands, marriage is defined as a legally recognized union between two
people, regardless of their gender or sexual orientation.
The government will include a gender-neutral term such as 'spouse' or 'party'.
So, if a same-sex couple is married or in a civil partnership, they have the
same inheritance rights as opposite-sex couples. This means that if one partner
dies, the surviving partner will inherit their assets unless otherwise specified
in the deceased partner's will. Without legal marriage, same-sex partners may
not have any automatic rights to inherit from one another, and instead, may need
to rely on other legal mechanisms, such as wills or trusts, to transfer assets
to each other. However, even with these legal instruments in place, inheritance
rights may not be as secure or comprehensive as those granted to married
Therefore, legalizing same-sex marriage can ensure that same-sex couples have
equal inheritance rights as opposite-sex couples and are not subjected to
discriminatory treatment. It can also provide greater legal clarity and
stability for same-sex couples, which can be especially important during
difficult times such as the death of a partner.
Legalizing same-sex marriage can have a significant impact on insurance rights
for same-sex couples. In many countries, including the United States, Canada,
and many European nations, legalizing same-sex marriage has led to insurance
companies being required to provide the same coverage to same-sex couples as
they do to opposite-sex couples.
For example, in the United States, after the Supreme Court ruled in favor of
legalizing same-sex marriage in 2015, same-sex couples gained the legal right to
obtain health insurance coverage through their partner's employer-sponsored
health plan, just as opposite-sex couples had always been able to do.
In addition to health insurance, legalizing same-sex marriage can also lead to
equal access to life insurance, disability insurance, and other types of
coverage. This can provide same-sex couples with greater financial security and
peace of mind.
Joint tax filing:
Legalizing same-sex marriage would allow same-sex couples to file joint tax
returns, which is a right currently only available to married couples this would
provide several benefits to same-sex couples.
The government can legalize civil unions:
If full marriage rights are not achievable, this would provide some legal
protections and recognition for same-sex relationships:
A civil union is a legally recognized partnership that provides some of the
legal benefits of marriage to couples who are not married. Civil unions are
often created for same-sex couples who are unable to legally marry due to laws
or social stigma that prohibit same-sex marriage In a civil union, the couple
may have many of the same legal rights and responsibilities as married couples,
such as the right to inherit property from one another, the ability to make
medical decisions for each other, and the right to receive spousal benefits such
as health insurance.
Homosexuals are deprived of all these rights in the current time and hence are
discriminated against. There can be a perfect solution for the government to
make a completely different set of laws for homosexuals without amending
marriage and divorce laws. As Hindus are governed by different laws, Muslims and
Christians by other laws, similarly there should be a different code for
homosexuals, a registration process should be there, where they can register
themselves as homosexuals and then will be governed by specific laws giving
those equal rights. This would help homosexuals to access all the rights that a
normal couple has.
In conclusion, if progressive steps are not taken the coming generation will
also have to suffer from this stigma and homosexuals will always remain the
second class of society. NALSA Judgement of 2014 and Navtej Singh Johar judgment
of 2019 gave hope to homosexuals and also gave them their rights but these
judgments would remain fruitless if the right of marriage to them is denied.
They should be treated at par with the other people in society without any
discrimination, they should also have easy access to their rights. Their
position in society can only be changed by some stringent actions by the
legislature and judiciary. In ancient times also love was celebrated regardless
of sexual orientation, why can't we celebrate law in this era? Let's conclude
with a question if not now then, when?
- Navtej Singh Johar V Union of India, 2018
- Chauhan, A.A.& A. (2022) Same sex marriage:the current conflict and the
way forward, Live Law. Live Law. Available at: https://www.livelaw.in/columns/same-sex-marriage-supreme-court-lgbtqiacommunity-fundamental-rights-article-14-217731?infinitescroll
- Francis Coralie Mullin v. Administrator, Union Territory of Delhi 1981
- Supra 1
- Nupur Vishnoi, Second year student at Dharmashastra
National Law University Jabalpur and
Email-id: [email protected]
- Mayuri Tumdam, Second year student at Dharmashastra National Law
Email-id- [email protected], Twitter-id- @29_mayuri, Linkedin id-