Name of the author: Sauvit S Patil
Name of the Institution: Faculty of Medical School, University of Bristol
Background of the Same-Sex Marriage Case 2023
In November 2022, the petitioners, Supriyo Chakraborty and his partner, challenged the absence of legal recognition for same-sex marriages in India. This expectedly so, awoke voices dormant in thousands of Indians living behind the veil of convention. There were a total of 52 plaintiffs and 20 consolidated petitions in this case. The petitioner’s claims were based on the backing of said laws hinting towards marriage equality like those of Article 14, Article 15 and Article 21. The court ruled against the petition formally stating that marriage is not linked with one’s fundamental rights. However, along with this dismissal, the court also stated the obvious by asserting homosexuals are entitled to equal treatment as heterosexuals. Although the case is mostly reduced to this narrow mould, it enveloped lot many nodes and edges. It was argued that marriage is a swirl of rights seamlessly gifted to all, leaving a class of people in drought. These included social acceptance, joint ownership, inheritance, adoption, and access to benefits like artificial insemination, surrogacy, and employment-related benefits. This led to a pack of laws like the Special Marriage Act of 1954, the Hindu Marriage Act of 1955, and the Foreign Marriage Act of 1969 mired in discussion. Nevertheless, according to the court’s decision, authored on 17th October 2023, the unavailability of marriage opportunities for same-sex individuals under the constitutional guarantee does not omit them from the right to privacy, autonomy and choice under the aforementioned articles 14, 15 and 21.
The Review Petition
The verdict of October 2023 that proved melancholy to the queers of India picked up both, support and reluctance. It made many, families at their dining tables, NGOs in their workrooms and Gen Zs in their classrooms stir up talks, perhaps debates. However, in January 2025, there has been a new update. How much ever it was expected, it would not be a cause of cheer for many. The review petition by Udit Sood, one of the original petitioners, was filed soon after in November 2024 has been unanimously rejected in January 2025. The judgement on the same-sex marriage case, therefore, although was not unanimous, will not be revised in the court anytime soon. The court said that it is in the parliament’s discretion to offer this recognition while rejecting the claim over marriage as a fundamental right. However, the court also showed agreement with transexual individuals having the right to marry under existing statutory provisions.
Implications of the Court’s Ruling
The queer community is undoubtedly marginalised throughout the world, and without legal protection, it becomes more vulnerable to discrimination. Although we do not have sufficient data to study the aspects and expanse of hate crimes towards this community in India, countries with legal recognition for same-sex marriage have shown a reduction in such crimes after the legislative recognition of this right. A study by Pettis and his colleagues that analysed data on hate crimes against the LGBTQ+ community in the US from 2000 to 2015 found a significant reduction in such crimes in the quarter immediately following the legalisation of same-sex marriage. Unfortunately, this would not be the case in India having not approved a similar agreement. Research by Galupo, Henise, and Davis has also stated that the impact of microaggressions like small events of discrimination can accumulate and result in the development of mental health problems. Therefore, accepting the vulnerabilities of LGBTQ+ members and providing them required care and encouragement would be the way forward. What we also need to remember is, that with or without legal recognition of same-sex marriage, it is impossible to separate the change that would be brought through legal or parliamentarian endorsement of such marriage from social change. In fact, social reforms themselves can translate into bringing legal reforms.
There have been more studies which in a way portray contrary scenarios to the studies mentioned above. Like that of by Manning and Masella that shows acceptance and dislike towards the community was seen in the newspapers after the landmark legislation of 2003 in the US, although the notions that justified homophobia were seen more. In any case, the rise of discussions of LGBTQ+ issues on public platforms, online or offline, triggers opinions from both standpoints. Being careful about viewing this issue as associated with the actual lives of people and not an isolated phenomenon can fuel acceptance at such times.
Can the Judiciary Lead or Will It Follow?
It may be debatable to say that Western nations were perhaps more predisposed to the idea of same-sex relationships and therefore, more aligned towards endorsing legislative activism in favour of it. There have been several attempts to explore homosexuality in medieval and ancient India and supposed mentions of its disapproval, though mild and never harsh. In the end though, however different are the two ends of the world, east and west, issues that concern their people might have a greater similarity.
If the question is whether same-sex marriage in countries that have endorsed it is the result of judicial activism, the answers would not be unanimous. Some might disagree by stating that the court’s initiative to involve itself in such matters is somewhat annexing the undertakings of other branches of the government. Contrary to this, those who might agree in favour of judicial activism would also agree that such legislative change comes through several improvements and is seldom a radical and singular improvement. We see a similar judicial role in the declaration of the Defense of Marriage Act (DOMA) being unconstitutional in the US where the federal government recognized the right to marraige of same-sex partners, but individual states do not have laws that provide the same protection or the same right with equal effect. However, the Court’s decision of scrapping DOMA suggests that the state laws will eventually change soon to reflect this federal ruling. Indian judicial entities may also most probably favour subtle evolutions and progressive shifts to reach a consensus on same-sex marriage.
Conclusion
The journey toward same-sex marriage recognition in India is far from over, but it’s clear that legal reforms are inextricably tied to evolving societal attitudes. The stimulation for change in India is surging, and as India grapples with these issues, a broader societal shift will likely magnify the needful legal reforms.