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  • Writer's pictureIRALR


Source : Pro Bono Australia

This article has been authored by Saksham Chaturvedi, a second year student at National Law University, Odhisa.


On 6th September, 2018 the Supreme Court of India read down Section 377 of the Indian Penal Code, decriminalizing the consensual practice of homosexuality in India. The order instantly became a celebrated judgment since the inhuman law had led to grievous discrimination towards members of the lesbian, gay, bisexual, transgender and queer (LGBTQ) community. While the judgment was hailed as a ‘historic victory’ and ‘momentous’, it did little for the community in a larger sense. The absence of legislation in protecting, and enabling their fundamental rights, has disabled them from living a dignified life. Therefore, this article is an attempt to examine the remaining obstacles in their long walk towards equality, and explore why a recent petition before the Delhi High Court could be an amelioration in the status quo.

The Legal Lacuna in Safeguarding LGBTQ Rights

The Supreme Court pronounced its judgment in Navtej Johar v. Union of India, it expanded upon the assertions put forth in the case of National Legal Service Authority (NALSA) v. Union of India, and recognised that the State has ‘no business to interfere in matters of personal intimacy’ and that ‘societal conception of heteronormativity cannot regulate constitutional liberties based on sexual orientation’. Even though the Navtej Johar judgment diagnosed the complication at hand, the order itself did not prove to be an effective remedy. This is primarily because of three reasons. First, the order did not penalise the rampant discrimination based on sexual orientation. Second, its dictum failed to realise the opportunity of legalising same-sex marriage across all personal laws. The judgment struck down discrimination in criminal law, while being restrained by distribution of power to reform similar aspects under civil law. Following this failure, third, it deprived the community at large from civil rights of succession, inheritance, and other conventional normalities which follow a legal marital status. The adoption of legislation for same-sex marriages was envisaged by the Apex Court in Navtej Johar, but it hasn’t been realized by the Parliament yet.

Allaying the foremost concern, the Indian Parliament came out with the Transgender Persons (Protection of Rights) Act, 2019 with the objective of prohibiting discrimination against transgender persons in matters of education, employment, and healthcare. The Act penalised discrimination and recognised common offences against transgendered persons and provided punitive prescriptions for such actions. The legislation however faced criticism for not recognising the rights of the transgenders in case they had not undergone sex reassignment surgery. The Act also did not recognise transgenders as socially and educationally backward classes and failed to provide them mandatory reservation under Articles 15 and 16 of the Constitution, coming into direct violation of the directive issued in the NALSA judgment. Overall, the legislation is a failure when it comes to protecting the interests of LGBTQ persons.

Global Position, International Law and Position in India

While the global voice for recognition of LGBTQ rights is increasing, India continues to have a conservative outlook on the issue. It is noteworthy that as many as 28 countries including the United States, Germany and Australia, have granted legal recognition to same-sex marriages. The U.S. Supreme Court in a landmark judgment of Obergefell v. Hodges, held that the right to marry is a fundamental right as per the Due Process Clause of the Fifth Amendment, and Equal Protection Clause of the Fourteenth Amendment. Additionally, in the case of DeBoer v. Snyder, the U.S. Supreme Court upheld the suspension of a State Law which banned adoption by same-sex couples. Under International Law, being a signatory to the United Nations Charter, The Universal Declaration of Human Rights (UDHR) and human rights treaties, India is bound to recognise same-sex Marriages, since discrimination of the basis of sexual orientation is violative of the right to equality and non-discrimination as prescribed under Article 2 of the UDHR.

The position of same sex marriage in India is complicated. While in theory the six codified personal laws do not specify that a marriage can solemnise only between a man and a woman, in practice none of them have so far allowed it. Although there are several isolated incidents where Courts have allowed such marriages to be registered, these affairs have had abysmal outcomes. So how can this issue be dealt with? The road to a solution diverges two ways. On one path we can hope to come across legislative action, or on the other a judicial decree. Treading in the first direction brings us to an instant stoppage, since the government has already expressed its disinclination to recognise same-sex marriages. The Union Minister for Law and Justice, recently submitted before the Parliament that they presently do not have plans to bring a legislation in this regard.

Although some people have argued that if a Uniform Civil Code is adopted, legalisation of same sex marriage would be certain, this is highly unlikely. This assumption can be presupposed because Goa, a state which already adopted a common civil code long back, only recognises a marriage between the opposite sexes. The Government’s unwillingness can be surmised from the fact that these questions are not politically simple in nature since the underlying question herein is whether marriage as an institution should remain under religious dominion or be recognised independently as a civil union.

A Way Forward

This leads to the road of litigation. The issue of same sex marriage has reached the doorsteps of the judiciary once again. A group of LGBTQ activists have approached the Delhi High Court seeking a declaration to recognise same sex marriage under the Hindu Marriage Act,1955. The petition argues that under Section 5 of the Act, a marriage can solemnize among ‘any two Hindus’ and not necessarily between a man and a woman. The petition adds that there is no statutory bar either under the Hindu Marriage Act or the Special Marriage Act to observe gay marriage, but the same is void of legal registration throughout the nation. This is not only violative of Article 21 of the Constitution, but also contradicts a long line of judgments in this respect. The Supreme Court, in the case of Shafin Jahan v. Asokan K.M & Ors, had upheld the right to marriage as a fundamental right. Furthermore, the compulsory registration of marriages, which do not have any statutory bar was mandated in the case of Seema v Ashwani Kumar.

In the interest of transgender marriage, in the case of Arunkumar and Sreeja v. Inspector General of Registration, the Madras High Court, interpreted the expression of “bride” under Section 5 of the Hindu Marriage Act, to include a transwoman; by rudimentary understanding, the judgment can be interpreted to have a gender-neutral meaning, hence extending the meaning of bride/groom to cover transgender men as well women. It also added that, the expression of a “bride” should have a dynamic and mutable interpretation. Hence, the position of transgender marriage should be settled at this point. Moving on to gay marriage, any such prohibition would similarly amount to violation of their fundamental right to life and personal liberty, since marriage is a universally recognised right and protected under Article 21 of the Indian Constitution irrespective of one’s gender identity. These assertions are backed up by the Supreme Court judgment of Justice (Retd) K S Puttaswamy vs Union of India, wherein, in exercise of choosing a partner, complete autonomy from State action was safeguarded.

Such prohibition also denies the LGBTQ community of an equal opportunity since they do not enjoy the same rights otherwise available to heterosexual couples. Herein, it is pertinent to mention that the Supreme Court held in the case of Shakti Vahini v. Union of India that the right to choose a partner is a fundamental right and any objection by associations or organisations in this very regard is unwarranted and hence corrodes the sanctity of Right to Equality under Article 14 of the Constitution.

Given the arguments, it becomes necessary that the Delhi High Court utilizes this opportunity and decides the matter in favour of the plaintiffs. If the same is achieved, it would be a tremendous victory for gender and human rights alike, since it would unravel multiple issues afflicting the litigants. This is because with legalised same-sex marriage, child adoption would be naturalised; legal permissions to medical procedures, joint ownership of property, or insurance, and other conventional normalities would be established which would enable same-sex couples to live a life of natural acquiescence and could steer the standardisation of homosexuality in modern Indian society. The establishment of a robust framework in protecting LGBTQ rights, is not only essential for promoting equality, but also in finding a balance between Constitutional Morality and public morality, staying true to the transformative nature of the Constitution, which is the part and parcel of any Constitutional democracy.

Since the matter is presently sub judice before the Delhi High Court, it is hoped that the matter is upheld by the Supreme Court to extend the jurisdiction of the judgment and widen the Constitutional provisions with regards to life and liberty.


Not concerning itself with the outcome of the petition, the social and legal adversity the LGBTQ community has endured is abundantly evident. Socially, the LGBTQ community has suffered and continues to suffer for no fault of its own; whether this should be imputed to the colonial legacy of the Indian Penal Code or to the outlook Indian society has had towards heterosexual orthodoxy remains obscure. Speaking in strictly legal terms, even after local and international judicial decrees mandating equal treatment and protection of rights, they have not been followed. It is now time that the status quo is challenged and changed in favour of the community which has been a victim of not only archaic laws but of a stagnant, stubborn, and regressive attitude of the society. If India finally decides to move forward in this direction, it would be a welcome step in the long walk towards affirming the universality of human rights.

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