When two persons of the same gender get married, it's known as a same-sex
marriage. This means that a man can marry another man or a woman can marry
another woman. It's about allowing people who love each other and happen to be
of the same gender to have the same legal rights and responsibilities in
marriage as opposite-sex couples.
In many nations around the world, same-sex couples have this basic freedom.
India is not one of those nations, though. Although it is presently illegal in
India, there is a rising push to legalize same-sex unions.
In ancient writings, artwork, and culture, India has always portrayed a wide
range of gender roles and sexual orientations. During this period, same-sex
partnerships and homosexuality were not specifically prohibited by law.
With the introduction of the Indian Penal Code of 1860 during British colonial
authority, the situation was changed. This law included Section 377, which made
homosexuality illegal by declaring "carnal intercourse against the order of
nature" a crime.
These restrictions from the colonial era continued after India attained
independence in 1947, subjecting LGBTQ+ individuals to prejudice and legal
In India, the fight for LGBTQ+ rights began gaining momentum in the latter half
of the 20th century.
Lawyers, organizations, and activists started questioning Section 377's
Status in India
The Hindu Marriage Act, 1955, which defines marriage as a relationship between a
man and a woman, governs the legal status of same-sex marriage in India. The
Special Marriage Act of 1954 further limits marriage to partners of the opposite
In India, same-sex unions are not recognized by law. But in recent years, there
have been notable developments and legal battles that have influenced the
conversation on same-sex unions and LGBTQ+ rights. The following are the key
occasions that involve same-sex unions in India:
The Naz Foundation filed a public interest lawsuit in the Delhi High Court in
2001, contesting the validity of Indian Penal Code section 377, which made
homosexual acts illegal. The case was delayed for a number of years.
The Delhi High Court ruled in 2009 that section 377 was unconstitutional,
decriminalizing consensual same-sex acts between adults. For LGBTQ+ rights in
India, the ruling was a major turning point.
In the Supreme Court, a number of individuals and organizations contested the
Delhi High Court's decision. Consensual same-sex acts were once again illegal in
2013 when the Delhi High Court's decision was overturned by the Supreme Court of
India, which also restored section 377.
In 2018, a five-judge panel of the Indian Supreme Court partially overturned
Section 377 of the Indian Penal Code, thereby decriminalizing same-sex
relationships between consenting adults. It is now legal for LGBT people to have
consensual relationships. The Court has upheld the criminalization of
non-consensual acts found in Section 377.
The Supreme Court's decision represented a huge win for same-sex marriage rights
in India as well as a major victory for the LGBTQ community there.
The Court did not, however, specifically address the topic of same-sex marriage.
In November 2022, two same-sex couples filed writ petitions in the Supreme Court
seeking legal recognition of same-sex marriages in India. The petitions were
centred around the constitutionality of the Special Marriage Act, 1954.
After a series of hearing and legal proceedings involving petitioners,
government opposition, and religious and child rights organisations the court
deliver his judgement on 17th October 2023.
A five-judge Constitution Bench of the apex court headed by Chief Justice of
India ruled in a 3:2 verdict against giving constitutional validity to same-sex
The CJI, in his opinion, concludes that the court can neither strike down or
read words into the Special Marriage Act (SMA) 1954 to include same sex members
within the ambit of the SMA 1954.The top court said it is for Parliament and
State Legislature to formulate laws on it.
In Short, The Court left it up to Parliament or the state legislatures to decide
whether or not to legalise same-sex marriage.
Questions and difficulties
One of the main obstacles to same-sex marriage being legalized
in India is public opinion. According to a 2022 survey, 47% of Indians are in favour of same-sex unions and 37% are against them. This implies that there is
still more work to be done in educating the public about the advantages of
In India, opinions on same-sex marriage remain divided for a variety of reasons.
One explanation for this is the continued taboo around homosexuality in many
areas of the nation. A great deal of stigma surrounds homosexuality, and a lot
of people don't know the fundamentals of same-sex marriage.
The impact of religion is another factor contributing to the differences in
public opinion. For religious reasons, many Indian religious groups are against
same-sex marriage. It may be challenging to sway public opinion because of this
vocal and powerful opposition.
This is another obstacle to same-sex marriage becoming
legal in India. There has been no commitment from the ruling Bhartiya Janta
Party (BJP) to change same-sex marriage laws. Indeed, a number of BJP leaders
have expressed their opposition to same-sex unions.
The BJP is against same-sex marriage for a number of reasons. One explanation
for this is that many Hindus think marriage ought to be between a man and a
woman, and the BJP is a Hindu nationalist party. The BJP is a traditionalist
party, and many traditionalists have moral objections to same-sex marriage. This
is another factor.
The stigma attached to homosexuality in Indian society presents
another obstacle to the legalisation of same-sex unions. In Indian society, a
lot of people hold unfavourable opinions about homosexuality. It is challenging
for same-sex couples to come out and fight for their rights because of this
stigma. Additionally, it hinders their ability to garner public support for
There are several reasons why homosexuality is socially stigmatized in India.
The impact of religion is one of the factors. In India, a lot of religious
groups consider homosexuality to be sinful. Many injustices and forms of
discrimination against same-sex couples may result from this belief.
Another contributing cause to the social stigma attached to homosexuality is the
lack of knowledge and understanding regarding same-sex marriage. The majority of
Indians are merely unaware of the definition of same-sex marriage and the
reasons for its legalization. Fear and prejudice can result from this ignorance.
For a variety of reasons, some Indian religious groups are
against same-sex unions. They contend that same-sex marriage cannot serve the
purposes of procreation and childrearing, which are the proper domains of
marriage between a man and a woman. Additionally, they think that same-sex
unions would threaten the established family unit.
In India, the religious community is strongly against same-sex marriage and has
considerable influence. It may be challenging to pass legislation allowing
same-sex marriage because of this opposition.
Additionally, it makes it challenging to increase public support for same-sex
The legalisation of same-sex marriage in India faces
certain constitutional obstacles. According to the Indian Constitution, marriage
is the union of a man and a woman. It would be necessary to change this
definition in order to make same-sex marriage legal.
The process of amending the Indian Constitution is difficult and complex. A
majority of state legislatures as well as two-thirds of Parliament's members
must support it.
It's important to increase public support for same-sex marriage in order to
overcome constitutional objections. This will facilitate the pressure on the
government to make Constitutional amendments. Collaborating with legal
professionals to devise tactics for contesting the current constitutional
definition of marriage is also crucial.
Even with same-sex marriage being legal in India, same-sex couples may still
encounter a variety of problems. Among these concerns are:
While same-sex marriage is becoming more popular in India,
there are still a lot of people who are against it for cultural or religious
reasons. Same-sex couples may find it challenging to feel respected and accepted
in their communities as a result of this social stigma.
Although same-sex marriage legalization would represent a
significant win for India's LGBTQ+ community, a number of legal concerns would
still need to be addressed. For instance, in order to register same-sex
marriages and provide marriage certificates to same-sex couples, the government
would need to create new regulations and procedures. To guarantee that same-sex
couples enjoy the same privileges and rights as heterosexual couples�such as the
ability to adopt children and inherit property�the government would also need to
make changes to existing laws.
There might be some financial obstacles to same-sex marriage
legalization. To guarantee that same-sex couples enjoy the same privileges and
rights as heterosexual couples, such as the ability to file joint taxes and
obtain family health insurance, the government would need to make changes to its
legal framework. This may come at a high cost to the government.
When same-sex marriage becomes legal, there will be several
implementation issues. The government will have to create new procedures, for
instance, for registering same-sex marriages and providing marriage licenses to
same-sex couples. Officials from the government must also receive training on
how to apply the new rules and regulations.
Breach of Essential Rights
The prohibition of same-sex marriage in India exposes the LGBTQ community to
numerous violations of basic rights. These consist of:
Within India's borders, equal protection under the law and equality
before the law are guaranteed by Article 14 of the Indian Constitution. This
implies that everyone is equal under the law and ought to be treated as such.
Nonetheless, same-sex couples are denied the same legal rights and protections
as opposite-sex couples due to the non-legalization of same-sex marriage. The
right to equality before the law has been flagrantly violated by this.
Discrimination on the basis of religion, race, caste, sex, or place
of birth is forbidden by Article 15 of the Indian Constitution. It follows that
these factors cannot be used as grounds for discrimination against any
individual. Nonetheless, same-sex couples face discrimination due to their
gender identity and sexual orientation when same-sex marriage is not legalized.
The Constitution's Article 15 is being clearly broken by this.
The freedoms of speech, assembly, association, and movement are
guaranteed by Article 19 of the Indian Constitution. This implies that
individuals are free to voice their opinions, congregate in peace, create
associations, and travel around India without restriction. However, the freedom
of expression and assembly for same-sex couples is restricted due to the
non-legalization of same-sex marriage.
For instance, same-sex couples might be
reluctant to discuss their relationship in public due to concerns about violence
or discrimination. They might also be afraid of being harassed or arrested,
which prevents them from gathering peacefully to demand their rights. The
Constitution's Article 19 is being clearly broken by this.
Article 21: The right to personal liberty and life protection is guaranteed by
Article 21 of the Indian Constitution. This implies that everyone has the right
to lead dignified lives and to make their own decisions regarding their private
lives. However, same-sex couples are denied the freedom to live their lives with
dignity and to make their own decisions regarding their personal lives because
same-sex marriage is not legal. The Constitution's Article 21 has been
flagrantly violated by this.
The LGBTQ community's fundamental rights are being violated by India's
non-legalization of same-sex marriage. Regardless of a citizen's gender identity
or sexual orientation, the Indian government has an obligation to preserve the
Constitution and defend their rights. In order to guarantee that same-sex
couples enjoy the same legal rights and protections as opposite-sex couples, the
government must take action to legalize same-sex marriage.
In India, same-sex marriage is a contentious issue with strong views on both
sides. But it's crucial to keep in mind that same-sex couples are also people,
and as such, they should have the same rights and protections as heterosexual
Legalizing same-sex unions would be a significant advancement for human rights
and equality in India. The nation will benefit from this positive development.
Numerous social, economic, and cultural advantages will result from it. Even
though there are still some issues to be resolved, same-sex marriage is becoming
more and more legal in India.
We can contribute to the realization of this goal
by educating the public, garnering support from legislators, and assisting
organizations that are attempting to legalize same-sex unions. It would send a
message that all Indians are valued and respected, regardless of their sexual
- A chronology of how the case reached SC's Constitution Bench - https://www.indiatoday.in/amp/law/story/same-sex-marriage-a-chronology-of-how-case-reached-supreme-court-constitution-bench-2361331-2023-04-18
- Unpacking Indian Supreme Court's verdict on same-sex marriage - https://www.aljazeera.com/amp/features/2023/10/17/unpacking-indian-supreme-courts-verdict-on-same-sex-marriage
- India Today, '10 instances of homosexuality among LGBTs in ancient India', India Today (10 July 2018)
- Indian Penal Code 1860
- Naz Foundation v Government of NCT of Delhi and others, WP(C) no 7455/2001
- Navtej Singh Johar & Ors v Union of India Thr Secretary Ministry of Law and Justice, WP (C) no 76/2016
Award Winning Article Is Written By: Mr.Sudhanshu Kumar
Authentication No: DE37120652441-12-1223