Pride, not prejudice: Recognizing LGBTQI+ marriages in India

In December last year, the Supreme Court of India issued notice to the Central Government, seeking its response to a public interest litigation (PIL) filed by a gay couple. The couple in question, who had been together for almost two decades and raised children together, had demanded the legal recognition of their marriage, along with the concomitant rights and benefits that married heterosexual couples in India currently enjoy.

At this juncture, in India, the rights of individuals vis-à-vis marriage, adoption, inheritance, etc. are governed largely by antediluvian colonial-era religious laws which date back to the British Raj, and unsurprisingly, envisage the family unit in a heteronormative binary paradigm. This conceptualization fails to account for the rights of those belonging to the LGBTQI+ community and thus, unfortunately at present, their domestic rights remain unrecognised in the country. Even the Special Marriage Act, enacted post-Independence in 1954, despite being the most progressive statute regulating marriage in India, does not recognise LGBTQI+ marriages, focusing solely on heterosexual unions between ‘men’ and ‘women’.

The petitioners averred that this denial of statutory recognition (available to all other citizens) was violative of their fundamental rights guaranteed under the Indian Constitution, in particular being violative of their Right to equality (Article 14) and non-discrimination on grounds of sex (Article 15), and their Right to Life (Article 21). To buttress their arguments, the petitioners cited a multiplicity of precedents, including the landmark 2018 Hadiya case, wherein an individual’s right to marry whosoever they want was included within the ambit of one’s Right to Life under Article 21 (and further re-iterated in Shakti Vahini v. Union of India). They also cited the celebrated case of Navtej Singh Johar v. Union of India, wherein Section 377 of the Indian Penal Code, 1860, which hitherto criminalized homosexuality, was declared unconstitutional by the Supreme Court insofar as it applied to same-sex relationships, thereby paving the way for the future recognition of the constitutional rights of LGBTQI+ persons. In April 2019, the Madras High Court, borrowing from the Supreme Court’s 2014 NALSA judgement (wherein the Supreme Court had pioneered the applicability of fundamental rights under the Indian Constitution to transgender individuals), brought transgender women within the ambit of the word ‘bride’ in Section 5(III) of the Hindu Marriage Act, 1955, thereby legally recognising Hindu transgender marriages solemnised under the Act.

Moreover, while Indian courts have not yet formally recognized LGBTQI+ marriages per se, they have, in various instances, recognized the constitutional rights of LGBTQI+ persons, including the right to enter into live-in relationships, which can be reasonably inferred as a precursor to the eventual recognition of their right to marry. In 2010, the Supreme Court of India, in the case of Khushboo v. Kanniammal, affirmed that the right to enter into a live-in relationship was an ineluctable facet of one’s Right to Life under Article 21 of the Indian Constitution, while in 2015, the Apex Court held that couples living in a live-in relationship would be presumed to be legally married if they had been living together for a sufficiently long period of time (Dhannulal v. Ganeshram). In June 2020, the Uttarakhand High Court upheld the legality of live-in relationships between same-sex couples. It held that the right of self- determination vis-à-vis one's gender identity and the freedom of choice with regard to the sexual orientation of one’s partner was an integral aspect of one’s Right to Life. A month later, the Punjab and Haryana High Court asserted that same-sex live-in relationships are recognised under the constitutional guarantees of equality (Article 14) and the Right to Life (Article 21), a sentiment echoed by the Odisha High Court in August 2020.

While all these trends are indicative of the overall judicial outlook in India being permeated by a somewhat liberal ethos, it must be accompanied by a similar metamorphosis in legislative recalcitrance. While it would seem that LGBTQI+ marriages could easily be statutorily recognized if legislators were alacritous enough, the problem is complicated by electoral considerations. As such, the majority of Indian society remains deeply rooted in a socio- culturally conservative ethos, and mere legislative or judicial fiat may not make an appreciable difference to this mindset. There is still, however, much to hope for, given the rapid pace of globalisation and the dissemination of liberal and progressive ideals into the Indian social milieu. Mirroring global trends, the socio-cultural attitudes of the Indian populace towards the rights of LGBTQI+ couples have greatly improved. In 2015, an Ipsos poll showed that 29% of Indians support same-sex marriage, while that share increased to 44% in a May 2021 poll.

Beginning with the Netherlands, which pioneered the statutory recognition of same-sex marriages in 2001, more than 30 foreign jurisdictions have since followed suit. The majority of these countries have introduced legislative frameworks recognizing same-sex marriages. Others, such as the United States, have seen the right to enter into such marriages read into the equality clauses of their constitutional texts (as was done by the US Supreme Court in Obergefell v. Hodges). If the Indian Supreme Court were to take a leaf out of its American counterpart’s book, India would replace the United States as the largest democracy to recognize same-sex marriages.

This year, 2023, holds great promise in that regard. Apart from the aforementioned petition filed in the Supreme Court, several petitions had earlier been filed before various courts in the country praying for the legal recognition of the right to marriage for LGBTQI+ couples, including petitions before the High Courts in Delhi and Kerala. In January, the Apex Court transferred to itself all such pending petitions, and gave the Central Government until February 15 to respond. As we await further developments, one hopes that by the time we celebrate Pride Month six months later, the Supreme Court will have pronounced a verdict it can truly pride itself on.

Mallar Mitra is an undergraduate law student at the West Bengal National University of Juridical Sciences, Kolkata, India.