Supreme court ruling on same-sex marriage in India

India's Supreme Court recently issued a ruling on same-sex marriage, refusing to legalize it and stating that the responsibility lies with Parliament to create a law for the recognition of same-sex marriages in the country.

The Chief Justice, DY Chandrachud, emphasized the need for the government to uphold the rights of the LGBTQ+ community and end discrimination against them. The court heard 21 petitions advocating for the legalization of same-sex marriage but ultimately concluded that it is the legislative function of Parliament to decide on expanding marriage laws to include queer unions.

The court also urged the government to ensure that same-sex couples do not face harassment or discrimination and proposed the establishment of a special committee to explore granting social and legal benefits to same-sex couples.

LGBTQ+ rights in India have been progressively expanding in recent years, with the decriminalization of same-sex relationships in 2018. However, the legal recognition of same-sex marriage remains pending parliamentary action.

History of homosexuality in India

Homosexuality has been present in Indian culture throughout history. India has a rich and diverse cultural heritage that encompasses a wide range of beliefs, practices, and expressions of human sexuality. In ancient Indian texts, such as the Kama Sutra and various temple sculptures, there are depictions and discussions of various forms of human sexuality, including same-sex relationships.

The Kamasutra is an ancient Indian text attributed to the sage Vatsyayana, believed to have been composed around the 2nd century CE. It is primarily a guide to human sexuality and relationships, covering various aspects of sexual behavior, including courting, marriage, and extramarital affairs. While it does discuss various sexual practices and orientations, it's important to note that the concept of sexual orientation, as understood in modern terms (including homosexuality), was not explicitly addressed in the Kamasutra.

In the Kamasutra, sexual behavior is often described in terms of the different types of men and women, and their compatibility with one another. It does mention a variety of sexual experiences, including those between people of the same sex, but it doesn't categorize these experiences in terms of sexual orientation as we understand it today.

Legislation in India concerning homosexuality

LGBT history in India has seen significant shifts and developments in recent years. Here is a summary of the key legislative and historical milestones related to the rights and recognition of the LGBTQ+ community in India:

• Section 377 of the Indian Penal Code (1861): This colonial-era law criminalized "carnal intercourse against the order of nature." It was used to persecute and discriminate against LGBTQ+ individuals in India for over a century.

• Naz Foundation vs. Government of NCT of Delhi (2009): This landmark case challenged the constitutionality of Section 377. The Delhi High Court, in a historic judgment, decriminalized consensual same-sex relations between adults, effectively ending the criminalization of homosexuality in India. However, this decision was later challenged.

• Suresh Kumar Koushal vs. Naz Foundation (2013): In a disappointing reversal, the Supreme Court of India overturned the Delhi High Court's judgment, reinstating Section 377 as a criminal offense. This was met with widespread protests and disappointment from LGBTQ+ activists and their allies.

• National Legal Services Authority (NALSA) vs. Union of India (2014): In this case, the Supreme Court recognized the rights and legal recognition of transgender individuals and established the principle that they have the right to self-identify their gender.

• The Right to Privacy (2017): While not a specific legislation related to the LGBTQ+ community, the Supreme Court's recognition of the right to privacy in this case played a crucial role in subsequent LGBTQ+ rights cases.

• Navtej Singh Johar vs. Union of India (2018): In a significant victory for the LGBTQ+ community, the Supreme Court of India, in a historic judgment, decriminalized consensual same-sex relations between adults and declared Section 377 unconstitutional.

• Transgender Persons (Protection of Rights) Act, 2019: This law was enacted to protect the rights of transgender individuals and provide them with legal recognition. It includes provisions related to self-identification of gender, non-discrimination, access to healthcare, and the right to education.

Arguments Supporting Same-sex marriage

Legalizing same-sex marriage in India has been supported by several key arguments. These include:

• Equality and Human Rights: Legalization promotes equality and human rights for all individuals, regardless of their sexual orientation. It ensures that LGBTQ+ individuals have the same rights and recognition as heterosexual couples.

• Marriage Equality: Allowing same-sex couples to marry affirms their right to have their relationships recognized and protected by law. Marriage is a fundamental right and a social institution that allows couples to express their love and commitment to each other.

• Social Acceptance and Inclusion: Legalization can contribute to the social acceptance and inclusion of LGBTQ+ individuals. It sends a message that their relationships are valued and respected, leading to reduced discrimination and stigma.

• Psychological Well-being: Legal recognition improves the psychological well-being of LGBTQ+ individuals. It reduces stress and anxiety associated with societal disapproval, providing a sense of validation and acceptance.

• Economic Benefits: Same-sex marriage can have positive economic effects. It stimulates wedding-related industries, boosts tourism, and encourages LGBTQ+ individuals to contribute more actively to the economy. It also helps in creating a more diverse and inclusive workforce.

• International Standards and Progress: Legalization aligns with international human rights standards and reflects societal progress. Many countries have already recognized same-sex marriage, and by legalizing it, India can join the global movement toward equality and inclusivity.

These arguments highlight the importance of legalizing same-sex marriage in promoting equality, social acceptance, and the overall well-being of LGBTQ+ individuals.

Arguments against Same-sex marriage

The arguments against legalizing same-sex marriage in India can be summarized as follows:

• Societal Values: Some argue that marriage between a man and a woman is deeply ingrained in Indian family values. They believe that recognizing same-sex marriages would challenge traditional concepts of marriage and family units that have been followed for generations.

• Legislative Authority: Opponents of same-sex marriage argue that the issue should be decided by the parliament rather than the judiciary. They contend that only the parliament has the authority to make laws, and legalizing same-sex marriage should be a legislative decision, not a judicial one.

• Chaos and Social Disruption: Concerns are raised about the potential chaos and disruption that might occur if same-sex marriages were to be legalized. Opponents’ express concerns about the impact on various aspects such as adoption, inheritance, and succession, which are governed by existing laws. They fear that legalizing same-sex marriage would have far-reaching consequences.

• Cultural and Religious Concerns: Religious leaders and conservative groups oppose same-sex marriage on cultural and religious grounds. They argue that it goes against traditional religious teachings and societal norms. They believe that marriage should only be recognized as a union between a man and a woman, as it has been traditionally understood in their respective religious and cultural contexts.

It is important to note that these arguments represent the perspective of those who oppose same-sex marriage in India. It is crucial to consider the diverse views and opinions on this topic, as well as the principles of equality, inclusion, and human rights that support the recognition of same-sex marriage.