THE LEGALITY OF HOMOSEXUAL MARRIAGES IN INDIA
This article is an analysis of the current legal position of homosexual marriages in India, and how this position compares with respect to other jurisdictions around the world. In the wake of decriminalization of homosexual relations, the existing legal structure has made strides. This article attempts to address the question of whether this also has the prospective effect of legalizing homosexual marriages.
LEGAL HISTORY OF HOMOSEXUALITY IN INDIA
Section 377 of the Indian Penal Code 1860 criminalised carnal intercourse ‘against the order of nature’. This included all forms of sexual activity that did not fit inside the little black box of ‘normalcy’. The addition of this section had legal backing and no valid grounds except for the fact that, Lord Macaulay hated the idea of any debate on the subject and abhorred this act for ‘being unnatural’. Thus, without any public discussion/debate, section 377 found its place in the draft of Indian Penal Code and continued to criminalise all forms of ‘unnatural’ sexual acts for a little over one and a half centuries. The LGBTQIA+ community experienced the most severe impact of this legislation.
The judgement of the Naz Foundation case came as a sliver of hope for Indian homosexuals, when the court held that Section 377 of the Indian Penal code is unconstitutional as it violates the fundamental rights guaranteed under Articles 14, 15 and 21 of the Constitution. The reasoning of the court was that article 14 was violated as it failed the Intelligible Differentia test and created unreasonable classes, tagging homosexuals as ‘unnatural’. While article 15 relies on the state to not discriminate on the basis of sex but section 377 discriminates between homosexuals and heterosexuals. Section 377 of Indian Penal Code also violated Article 21 of the Indian constitution as it violated the right to a private, dignified life.
In 2013, Suresh Kumar Koushal v. Naz Foundation v. Govt. of NCT of Delhi, re-criminalised the act of carnal intercourse against the order of nature. The court held, “Naz foundation overturned the judgement of the above discussion, we hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable." This judgement was highly criticised by many people across the country and followed by movements for the legal recognition of homosexuality.
In 2018, Navtej Singh Johar v Union of India, a five-judge bench, held Section 377 of the Indian Penal Code 1860 as unconstitutional for violating Article 14, 15, 21 of the Indian Constitution and legally recognised the homosexuality. The court held that section 377 of Indian Penal Code is manifestly arbitrary and creates unreasonable classes. The court also said that the discrimination based on sex is stereotypical and is unconstitutional under article 15 of the Indian constitution. The court concluded that unnatural does not always mean something illegal, instead unnatural can be beneficial too like heart transplants, etc. The court states that instead of following the majoritarian notion, they based their decision on constitutional morality and grant equal rights to all the citizens of India.
Thus, in 2018, the Supreme Court of India decriminalised Section 377 of Indian Penal Code, 1860 and legally recognised that sexual intercourse between a same-sex couple is not a criminal act. But even after this judgement, same-sex marriages are not legally recognised in India. The marriage laws in India are gender specific and recognise only heterosexual unions. There is a need for marriage laws for homosexual couples in India. Thus, same sex marriage is still a dream for homosexual couples in India.
Further, while other members of the LGTBTQIA have received some form of relief regarding marriage laws, homosexual couples continue to be overlooked. The Transgender couples have the right to get married and even adopt children, they are now able to register their marriages under the Hindu marriage act and special marriage acts, respectively. In the state of Kerala a specific legislation exists to the effect of granting marriage and adoption rights to transgender couples. No such legislation currently exists for homosexual couples in the entire country. While a member of a homosexual couple may legally adopt a child, it would not be possible for a couple to do so jointly. This is an arbitrary classification without any logical reason.
India is also bound by constitutional morality and not social morality, i.e., acceptance of homosexuality in law cannot be decided based on public opinion, but rather on the legal principles in place. In a country like India, the public morality cannot be allowed to judge the legitimacy of sensitive subject like homosexuality, as sexuality of any kind, even heterosexuality is perceived as a taboo subject, which is a very personal matter in this country and is not up for open discussions.
THE EXISTING LEGISLATIONS FOR SAME-SEX MARRIAGES IN OTHER COUNTRIES
The struggle for legal recognition and attainment of even the most basic human rights has been a long-fought struggle for members of the LGBTQIA community. Even though, martial rights have been realised for homosexual couples in some countries across the globe, it is still a long way to go to achieve any desired state of affairs. Homosexual marital rights were only realised as recently as 2001 in Netherlands. It was the first country in the world to have explicit laws to the effect. Although, in 1993, a court ruling in Hawaii first held that not allowing same sex marriages was in contravention with the state constitution of Hawaii which had an equality clause. This ruling was overturned by the legislators in the state, who voted with an overwhelming majority, against allowing same-sex marriages.
Nevertheless, western Europe followed the example set by Netherlands and became the first continent in the world to have majorly accepted same-sex marriages, with more than half of European countries allowing same-sex marriages. However, countries in central and eastern Europe remained sceptic about such a law and only adopted them in later years. Religion and orthodoxy played a major role in determining which countries legalised same-sex marriages in Europe. Central and Eastern Europe majorly contained countries which either had a strong Orthodox background or had firm religious beliefs which opposed the idea of homosexuality.
However, currently, even those countries in central and eastern Europe that previously staunchly opposed same-sex marriages, such as Italy, now have provisions for civil unions between such homosexual partners. The United Kingdoms also allows same-sex marriages. The first law relevant to this came out in 2005, when civil partnerships were legalized in England. In the UK, the same sex couples Act, 2013 was introduced in the parliament and took almost a year to be passed. This legislation came about in three parts, first in England and Wales in 2014, then in Scotland a few months later and finally in Northern Ireland, in 2019. Australia also voted for the legislation to be passed and opted in the state.
The United States of America on the other hand, also allows for either a civil contract between willing partners in some states, while in others, there exist specific laws which provide for full marriages between such partners. This has only been achieved in the US after a long journey of protests and several years of pride parades. In fact, initially, US was one of the first nations in the world, to make a legislation which was specifically aimed at curbing same-sex marriages. The defense of Marriage act was passed and made law in 1996. It was aimed at taking away any benefits, such as health insurance, education, retirement, and other federal benefits which were extended to married couples from any same-sex couple who lawfully got married outside the US.
The state of California was amongst the first in US which passed a legislation in support of LGBT relationships, wherein, a domestic partnership statute was passed as early as 1999, elsewhere in US, Massachusetts lawfully allowed same-sex marriages in 2003. Several states reacted to this, by passing anti-same-sex marriage legislations in the following year. However, a supreme court judgement in 2015, prompted same-sex marriages to be legalised throughout the United States.
PROBLEMS WITH THE INDIAN LAW AND ALTERNATE REMEDIES
In 2018, the homosexuals were legally recognised in India, but they were not given any further rights related to marriage. This is because the Indian Marriage Laws considers only heterosexual couples. Moreover, each religion has separate marriage laws based on their customary practices which makes it difficult for adding homosexuals as a part of these marriage laws. There should a uniform civil code which will legalise the marriage rights of homosexual, heterosexual and transgenders in India. A uniform law on marriage or marriage equality will allow the homosexuals to adopt a child, give them succession rights, guardianship, inheritance, benefits arising from marriage like insurance, etc.
In Shakti Vahini v. Union of India and Ors., 2018, the Supreme Court held that right to choose a partner is a fundamental rightt. Moreover, in Justice KS Puttaswamy v. Union of India, 2017, J. Nariman said that the right to privacy also includes privacy to choose under Article 21 of the Indian Constitution. Furthermore, Article 14 of Indian Constitution guarantees equality before law for every citizen. Thus, homosexuals should get the legal recognition for marriage as not doing so is violating their fundamental rights under Article 21 and Article 14 of the Indian Constitution.
Denying the right to marriage for homosexual couples is also a violation of Article 16 of the Universal Declaration Of Human Rights as mentioned by South African Judge Albie Sachs, “Denying people access to marriage… it’s denying them the state and dignity of being ordinary citizens in a society.” India is also a signatory of the Universal Declaration of Human Rights and thus, it should not deny the marriage rights to homosexuals.
From a legal perspective homosexual marriages currently stand at an impasse, where even though it is not illegal for these couples to get married and they cannot be punished for it, it does not automatically have the effect of legitimizing such marriages either. So, while they may not be illegal, they are not recognized in law either.
 Alok Gupta, Section 377 and the Dignity of Indian Homosexuals, The Economic and Political Weekly, Vol. 41 pp. 4815 (2006).  Naz Foundation v. Govt. of NCT of Delhi,(2009) 160 D.L.T. 277 (India).  Id.  Id.  Id.  Suresh Kumar Koushal v. NAZ Foundation, (2013) 15 S.C.C. 619(India).  Navtej Singh Johar v Union of India, (2018) 10 SCC 1(India)  Id.  Id.  Id.  Arunkumar v. The Inspector General of Registration & ors, (2019). AIR WP (Md) No 4125 (India)  State Policy for Transgenders in Kerala, 2015.  Government of Netherlands, https://www.government.nl/topics/family-law/same-sex-marriage. Michael J. Klarman, How Same-sex Marriage came to be, Harvard Magazine, https://harvardmagazine.com/2013/03/how-same-sex-marriage-came-to-be.  “5. Social views and Morality”, Pew Research Center, https://www.pewforum.org/2017/05/10/social-views-and-morality/.  Id.  Olivia Petter & Sabrina Barr, Civil Partnerships: What are they and how are they different from marriages?, Independent, (2019) https://www.independent.co.uk/life-style/love-sex/civil-partnerships-mixed-same-sex-couples-marriage-benefits-a9229406.html.  Sophie Roberts, I DO! When was same sex marriage legalised in the UK and how did Northern Ireland vote?, The Sun, (2019)https://www.thesun.co.uk/fabulous/4917555/same-sex-marriage-legalised-uk-northern-ireland/  Supra note 14.  Obersevelle v Hodges, 576 U. S. (2015).  Shakti Vahini v. Union of India and Others, (2018) 7 SCC 192 (India).  Justice KS Puttaswamy v. Union of India, (2017), 8 SCC 735 (India).  INDIA CONST. art. 14.