Will India’s Supreme Court Recognize Same-Sex Marriage?

A blog post by Andy Garcia, Senior Associate

On March 13, 2023, the Supreme Court of India will hear arguments to determine whether the Special Marriage Act[1] and Foreign Marriage Act violate the Indian Constitution because neither law recognizes same-sex marriages.[2]Currently, in India, marriages are either governed by laws specific to certain religious groups or the Special Marriage Act, meant to recognize interfaith and secular marriages.[3] These laws limit marriages only between a man and woman.[4] As a result, same-sex couples in India are denied basic legal rights that are afforded to married heterosexual couples; inheriting property[5], ability to have a family via adoption[6], medical determinations, and pension plans.[7]

While, India is the largest democratic country in the world[8], it is a 1.4 billion socially conservative population[9]with a conservative Hindu controlled legislature that religiously opposes same-sex marriage.[10] Nevertheless, separately, four same-sex couples seek to challenge both religious and secular marriage laws on the ground that the laws violate each couples’ “constitutional rights to equality, freedom of expression, and dignity.”[11] In January of this year, the Supreme Court of India consolidated the four petitions and decided to take on the issue.[12] The Court has given the Indian government until February 15, 2023 to provide a response to the couples’ petitions.[13] It appears likely that the Indian government will oppose the petitions.[14]

Based on prior precedent from the Supreme Court of India, some scholars argue that the couples have “’a really strong case’ from a constitutional perspective.”[15] For instance, in 2014, the Court recognized non-binary and transgender identities as a third gender. [16] In Navtej Singh Jonar v. Union of India, the Court held unconstitutional section 377 of the India Penal Code which criminalized homosexual sex with a maximum sentence of ten years imprisonment.[17] The Court, in Navtej Singh Jonar, stated that the Indian Constitution is a “living and organic document” that must be interpreted with a progressive eye to “combat the evils of inequality and injustice that try to creep into the society.”[18] Therefore, “[t]he sexual autonomy of an individual to choose his/her sexual partner is an important pillar…of individual liberty.”[19] When the majority attempts to limit an individual’s ability to exercise such a liberty, “the fundamental right of liberty of such an individual is abridged.”[20] The Court’s progressive and expansive constitutional interpretation paves the way to the next possible step, recognition of same-sex marriages.

Since the Court’s judgment, both the Indian government and Rashtriya Swayamsevak Sangh, a Hindu nationalist group, have agreed with the high court’s ruling however, remain opposed to the recognition of same-sex marriage in the law.[21] Nevertheless, despite the societal and governmental attitudes, Utkarsh Saxena, one of the individuals’ petitioning the high court, is glad to continue the constitutional fight.[22] Hopefully the Court will continue its furthering protection of underrepresented groups, change societal norms and “move [the nation] from darkness to light, from bigotry to tolerance and from the winter of mere survival to the spring of life ― as the herald of a New India ― to a more inclusive society.”[23]

[1] Shruti Mahajan, How Same-Sex Marriage Could Become Legal in India, Time (Jan. 17, 2023, 11:30 PM), https://time.com/6247937/india-same-sex-marriage-supreme-court/.

[2] Sarthak Gupta, India Supreme Court consolidates high court same-sex marriage petitions, Jurist (Jan 06, 2023 09:13 AM), https://www.jurist.org/news/2023/01/india-supreme-court-transfers-high-court-same-sex-marriage-petitions-to-itself/.

[3] Sheikh Saaliq, Indian Couples Begin Legal Battle for Same-Sex Marriage, The Diplomat (Feb. 04, 2023), https://thediplomat.com/2023/02/indian-couples-begin-legal-battle-for-same-sex-marraige/.

[4] Id.

[5] Id.

[6] Shyla Mishra, Commentary: India must secure LGBTQ+ community’s human rights, The Ithacan (Jan 31, 2023), https://theithacan.org/opinion/commentary-india-must-secure-lgbtq-communitys-human-rights/.

[7] Arpan Chaturvedi & Rupam Jain, Gay couples in India ask Supreme Court to legalise same-sex marriage, Reuters (Dec. 19, 2022 1:54 AM), https://www.reuters.com/world/india/gay-couples-india-ask-supreme-court-legalise-same-sex-marriage-2022-12-19/.  

[8] Constantino Xavier, Interpreting India at the Summit for Democracy, Brookings (Dec. 06, 2021), https://www.brookings.edu/blog/order-from-chaos/2021/12/06/interpreting-india-at-the-summit-for-democracy/.

[9] Chaturvedi & Jain, supra note 7.

[10] Saaliq, supra note 3.

[11] Gupta, supra note 2.

[12] Id.

[13] Mishra, supra note 6.

[14] See generally Saaliq, supra note 3 (parliamentarian of the majority party stating same-sex marriages would cause “complete havoc with the delicate balance of personal laws in the country.” and “against the cultural ethos of the country”); Chaturvedi & Jain supra note 7 (India’s law ministry referred to marriage as “a solemn institution between a biological man and a biological woman.”).

[15] Mariana Qu, Harvard Alum Petitions Supreme Court of India to Legalize Same-Sex Marriage, Harvard Crimson (Feb. 10, 2023), https://www.thecrimson.com/article/2023/2/10/alum-lgbtq-supreme-court-india/.

[16] Id.

[17] Saaliq, supra note 3.

[18] Navtej Singh Johar v. Union of India, (2018) 76 SCC 1, 157 (India).

[19] Id. at 142-43.

[20] Id.

[21] Mahajan, supra note 1.

[22] Qu, supra note 15.

[23] Navtej Singh Johar, 76 SCC at 154.

Leave a Reply

Your email address will not be published. Required fields are marked *