HAS THE JUDICIARY FAILED TO LEGALIZE SAME SEX MARRIAGE OR DOES THE CONSTITUTION LIMITS THEM TO DO SO?

"history owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.” - Justice (retd) Ms.Indu Malhotra.

A review petition challenging to re -look the judgement passed in ‘Suprio & Anr vs Union of India 2023 INSC 920  was dismissed by the supreme court on 9^th January, 2025. The revised bench refused to revisit the already well structured 3:2 majority constitutional judgement that failed to legalize same sex marriage in 2024.

Has the supreme court of justice denied the legal recognition of same sex marriage or has the Supreme Court rightly justified its reasoning due to its constitutional limitations and restrictions?

The Supreme court in its landmark judgement in NALSA vs UOI 2014 SC 1863 had categorically recognized transgender people as a ‘third gender’ observing that gender identity is not to be categorized with respect to its biological characteristic thereafter the Supreme court’s observation in Navtej Singh Johar vs UOI 2018 1 SCC 791 was a milestone to the journey of legal recognition of LGBTQ people in India. It not only decriminalized consensual sexual activities by the LGBTQ community by holding section 377 IPC (unnatural sex) unconstitutional because it was violative of article 14 and 15 but also set out to observe that ‘persons find love and companionship in persons of the same gender; protected the class against discriminatory behavior; and recognized the duty of the State to end the discrimination faced by the queer community.’

 PRELUDE

Non-heterosexual genders should be provided a complete constitutional recognition and the only deficiency at present is the absence of a suitable regulatory framework for such unions.  The verdict of the constitutional bench in Suprio vs UOI, through different opinions showed how open the judiciary has become in accepting queerness in the society. Although, the majority view failed to recognize same sex marriage because the constitutional limitations restricts them from doing so, the verdict does not take away the autonomy of love, commitment, responsibility and equality of the LGBTQ and the citizens of this country ought to protect and preserve them.

 

HOMOSEXUALITY OR QUEERNESS.

Homosexuality or Queerness is a natural phenomenon and is not urban or elite that has grown popular in recent  years. Transgender and other form of queerness have been a part of the Indian lore and are known by different names including hijras, kothis, aravanis, jogappas, thiru nambis, nupi maanbas and nupi maanbi since ancient times and are deemed to hold high customary value in Indian beliefs and superstitions.  Similarly, The label ‘Queer’ or ‘Queerness’ does not  mirror the western structure or is it deemed urban or elite originated from recent pop culture. It is deemed an expression by way of identity for belonging to an age-old phenomena which have historically been present in the world and has been prejudiced overtime. Queerness, transgenderism, homosexuality, and queer sexual orientations is innate and natural has also been legally observed by the Supreme court in Navtej Singh Johar 

THE COMPLICATIONS FOR A LEGAL RECOGNITION.

The Supreme Court has recognized that queerness is a natural phenomenon but the failure of the SC to not legalize same sex marriage should not preclude non-heterosexual persons from celebrating their commitment to each other, or relationship, in whichever way they wish, within the social realm. In Suprio, the majority view of the verdict reasoned the restrictions of the constitution from recognizing same-sex marriage because the constitution limits the Judicial powers to enact a new law and have only stipulated the legal directions to comply with: An entitlement to legal recognition of the right to union similar to marriage or civil union, or conferring legal status upon the parties to the relationship can be only through enacted law.The court cannot enjoin or direct the creation of such regulatory framework resulting in legal status.

 

POSITIVE APPROACH BY THE VERDICT.

Although the majority decision opined in Suprio vs UOI to not legalize same sex marriage but the overall consensual decision also laid positive directions for the LGBTQ community that:

l The failure to recognize same sex marriage does not to preclude queer persons from celebrating their commitment to each other, or relationship, in whichever way they wish, within the social realm

l The Union shall set up a high-powered committee chaired by the Union Cabinet Secretary, to undertake a comprehensive examination of all relevant factors, especially including those outlined above. In the conduct of such exercise, the concerned representatives of all stakeholders, and views of all States and Union Territories shall be taken into account and The Committee shall include experts with domain knowledge and experience in dealing with the social, psychological, and emotional needs of persons belonging to the queer community as well as members of the queer community

l The right to enter into a union cannot be restricted based on sexual orientation. Such a restriction will be violative of Article 15. Thus, this freedom is available to all persons regardless of gender identity or sexual orientation;

l The queer couples are free to exercise their choice of relationship and states should ensure that there should not be any discrimination. These measures need to be taken with expedition because inaction will result in injustice and unfairness to the LGBTQ community.

l The choice exercised by queer and LGBTQ couples to cohabit is not interfered with and they do no face any threat of violence or coercion. All necessary steps and measures in this regard shall be taken. The respondents shall take suitable steps to ensure that queer couples and transgender persons are not subjected to any involuntary medical or surgical treatment.

l Transgender persons in heterosexual relationships have the freedom and entitlement to marry under the existing statutory provisions.

l The rights of LGBTQ+ persons, that have been hitherto recognized by this Court, are the right to gender identity, sexual orientation, the right to choose a partner, cohabit and enjoy physical & mental intimacy. In the exercise of these rights, they have full freedom from physical threat and from coercive action, and the State is bound to afford them full protection of the law in case these rights are in peril.

 

CONCLUSION

In India, marriage is considered a holy sacrament, It is conditioned and occupied synchronously by legislative interventions, customary practices, and religious beliefs and is not legally regulated by a singular statue. The Hindu marriage Act,1955, The Special Marriage Act,1954, The Foreign Marriage Act, 1969, The Muslim marriage Act 1954, Hindu Adoption act, Divorce Act etc. These acts enacted in India are customarily enacted that has been rooted with various religious and customary practices. To legally include and validate same sex marriage to these already existing statutory laws would create a big muddle with a lot of irregularities and uncertainties. Legalizing same sex marriage would not only create irregularities  in  marriage but also in terms of maintenance, divorce, adoptions, property rights etc. The legal validity of same sex marriage can only be recognized by a deliberative and consultative exercise, and only the parliament is the competent forum to do so. The failure of the Supreme court verdict to legalize the same sex marriage does not take away the recognition of the state that ‘LGBTQ relationships’ that exists in modern day society and the affairs of these genders are of national importance and should be treated as equal under the constitution. Equality has a holistic meaning in the constitution and necessitate acceptance and protection of individual choices. The majority verdict does not take away the legal recognition and freedom of expression of the these people. The judiciary has rigorously played its part empathically and beautifully carving its drawbacks, loopholes, furtherance and optimistic approach. It is now for the parliament to decide and act and this burden lies on the democracy to demand a legal frame work for the LGBTQ community. When and who will take responsibility to make this happen, only time will tell.