Unveiling Same-Sex Marriage In India - Historical, Legal, And Religious Discourses On Homosexuality
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UNVEILING SAME-SEX MARRIAGE IN INDIA:
HISTORICAL, LEGAL, AND RELIGIOUS DISCOURSES ON HOMOSEXUALITY
Anam Abbas, Jamia Hamdard, New Delhi
ABSTRACT
Same-sex marriage represents a novel facet of societal transformation within Indian culture, necessitating widespread public awareness. Homosexuality, an enduring concept traced back to the Vedic era, initially enjoyed social acceptance until the implementation of Section 377 of the Indian Penal Code. This legal provision exacerbated the plight of homosexuals, subjecting the entire community to persecution. The landmark Supreme Court ruling in Navtej Singh Johar v. Union of India in 2018 finally secured the rights to privacy and dignity for individuals identifying as homosexual. However, even with the judicial pronouncements, there are sections within the legislative bodies that continue to oppose the idea of same-sex relationships, which is reflected in the case Supriyo Chakrawarti v. Union of India before the Supreme Court.
In light of the above, this paper shall be a doctrinal analysis of same-sex marriage in the Indian context. It aims to delineate and elucidate diverse facets of homosexuality, encompassing its evolution, causative factors, societal perceptions, and responses to such relationships. Additionally, the paper extrapolates insights from nations where same-sex marriages are legalized, emphasizing the consequences of both legal acknowledgment and lack thereof for such unions. It also deals with the religious perspective of marriage in different religions. Ultimately, it culminates by contemplating the potential legalization of homosexual marriages in India, drawing upon recent advancements, particularly regarding marital rights, and speculating on the potential future trajectory for action within the country. Keywords: Same-sex marriage, Homosexuality, legal recognition, India
INTRODUCTION
Choosing a life partner is an integral part of choosing one's course of life. The right to enter into a union includes the right to choose one's partner and the right to recognition of that union. A failure to recognize such associations will result in discrimination against queer couples. 1 – DY CHANDRCHUD, CJI Marriage is widely regarded as one of the most sacred institutions within society, symbolizing the union of two individuals bound by mutual understanding and commitment. It confers societal recognition upon the couple, embodying notions of respect and dignity. Over the years, the institution of marriage has evolved alongside societal transformations. Traditionally, marriage was viewed as exclusive to heterosexual relationships, despite the gender-neutral language present in many legal frameworks.
In recent times, however, there has been increasing acceptance of same-sex marriages as societies become more inclusive. While some jurisdictions have decriminalized such unions, others continue to enforce statutory prohibitions, drawing criticism for clinging to outdated norms. In India, following years of advocacy, the Supreme Court’s landmark 20182 decision decriminalizing same-sex relationships, in tandem with the right to privacy judgment, has significantly strengthened the legal foundation for the LGBTQ+ community to assert their rights and identity. This ruling has also contributed to a gradual shift in societal attitudes towards same-sex relationships. As a result, many are now advocating for the legalization of same-sex marriage in India, viewing the Court’s decision as a crucial step toward broader recognition of LGBTQ+ rights.
Significant cases, such as the Madras High Court's recognition of the union between a man and a trans-woman in the Arun Kumar case3, underscore shifting legal and societal perspectives. Notably, for the first time, Article 21 of the Constitution, which guarantees the Right to Life and Personal Liberty, was invoked to validate such a union. However, the Supreme Court, in the Supriyo Chakravarti case4, clarified that Indian law does not presently recognize marriage as a fundamental right, hinting at the potential for legislative amendments under certain
1 Supriyo v. Union of India, (2023) 6 SCC 170
2 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
3 Arun Kumar & Other Vs. The Inspector General Of Registration & Others W.P. (MD) NO. 4125 OF 2019
4 Supriyo v. Union of India, (2023) 6 SCC 170
circumstances. While these developments reflect progress, considerable challenges remain, as the queer community continues to advocate for the legalization of same-sex marriage and broader civil rights protections.
HISTORICAL
BACKGROUND
OF SAME-SEX MARRIAGE IN INDIA An exploration of the historical context surrounding same-sex relationships in India reveals a compelling narrative of societal transformation, from an initially open and liberal stance to one marked by conservatism. For centuries, Indian society exhibited tolerance and liberalism concerning the status of homosexuals and same-sex couples. However, the imposition of colonial English laws introduced unfavorable legal precedents, contributing to a decline in societal acceptance and the growth of intolerance toward these communities. Same-sex relationships have a deeply rooted history in India. Numerous references to such relationships and transgender individuals can be found across various ancient kingdoms. Hindu scriptures, along with Indian art and architecture, frequently depict the concept of gender fluidity.
Historical evidence of same-sex couples dates back to the Rig Vedic period, with notable examples including references from Valmiki’s Ramayana, such as Hanuman observing two rakshasa women kissing in Lanka. Temples such as those in Khajuraho, the Ellora caves in Maharashtra, and the Sun Temple in Konark also depict same-sex relationships, while the ancient text Kama Sutra dedicates an entire chapter to the subject of homosexual behavior. The chapter Auparishtaka makes explicit reference to gay men, particularly in the context of oral sex, where homosexual men are portrayed in passive roles and referred to as "mukhebhaga" or "asekya. " These instances collectively highlight a historical acceptance and representation of diverse sexual orientations and gender identities in ancient Indian society.
The temple sculptures intricately depict scenes of same-sex relations, portraying exposed men and women engaging in erotic embraces that denote sexual fluidity. These depictions serve as tangible evidence of a liberal society that existed without judgment, openly portraying diverse forms of intimacy and relationships in revered and prominent places like temples. 5 The Kama Sutra also documents the existence of harems consisting of young boys, which were maintained 5 Saif Rasul Khan, Same-Sex Relationships And Marriage In India: The Path Forward, Volume IV Issue I, Indian Journal of Integrated Research in Law 749 (2021) by Hindu aristocrats and Muslim nawabs. However, with the advent of Brahmanism and the subsequent influence of colonial powers, societal perceptions shifted, and such practices began to be viewed with contempt.
The Aryan invasion played a pivotal role in this transformation, as it sought to suppress homosexuality and reinforce the dominance of patriarchal structures. This suppression gradually gave rise to various forms of homophobia, leading to a detachment of homosexuality from its historical roots and a gradual erosion of its once-accepted status in Indian society. The advent of British rule in India brought about a profound transformation in societal and legal norms, infusing a more anglicized perspective into Indian culture. One significant example was the British introduction of the Criminal Tribes Act in 1871, which targeted specific communities, including transgender individuals labeled as 'eunuchs.
' This act subjected them to numerous indignities, including forced medical examinations, penalties for dressing in feminine attire, restrictions on their ability to engage in certain activities, limitations on making gifts, and the invalidation of their wills. Although the Criminal Tribes Act was repealed after India gained independence, many of its discriminatory elements persisted through various central and state laws, particularly those classifying and treating individuals as 'habitual offenders. ' This colonial legal legacy left a lasting impact, fostering societal attitudes and practices that were increasingly hostile to the homosexual community. The legal framework in India was significantly shaped by British influence, most notably with the introduction of the Indian Penal Code (IPC), drafted under the direction of Lord Macaulay.
Through the enactment of Section 377, homosexuality was criminalized, rendering same-sex relationships punishable by imprisonment and fines. This provision became the cornerstone of the legal oppression endured by same-sex couples, deeply embedding discrimination against the LGBTQ+ community within the legal and social fabric of India. Decades long wait to decriminalisation has culminated in a landmark moment in 2018 with the Navtej Johar case6. This legal development marked a significant step towards dismantling the discriminatory provisions against homosexuality that had been instituted during the colonial period.
6 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
RELIGIOUS PERSPECTIVE ON SAME-SEX MARRIAGE The three predominant religions in India—Hinduism, Islam, and Christianity—each offer distinct definitions and practices concerning marriage. However, none of these religious traditions specifically recognize or provide provisions for same-sex marriages within their doctrines or teachings. Hindu marriages, which are legally recognized, traditionally involve unions between individuals of the opposite sex. While there have been instances of same-sex couples participating in marriage ceremonies, authorities have generally refused to grant official recognition to such unions. Although certain Dharmic texts include prohibitions against homosexuality, Hindu mythology is replete with stories that depict homosexual experiences as natural and joyous, reflecting a more nuanced historical view of gender and sexual diversity within the religion7.
Marriage in Islam necessitates a formal and binding contract. There exists a challenge in accepting individuals engaged in sexually active relationships with people of the same sex. According to accounts, Prophet Muhammad is said to have prescribed the death penalty for both the active and passive participants involved in same-sex activities8. As per its beliefs engaging in homosexual activities is viewed as a challenge to the harmony of God's creation, constituting a rebellion against God9. Although the Christian theology does outrightly defines marriage there are merely implications of marriage laws in the Bible which defines it as a union between a man and a woman. For example a passage in the Bible advises husbands to demonstrate love toward their wives akin to Jesus' love for the church10.
In the absence of specific definition of marriage, many traditional Christian societies and churches typically do not acknowledge same-sex unions. Their belief is centred around the idea that marriages should adhere to the concept of "traditional" marriage, excluding same-sex partnerships.
7 Nancy Bonvillain, Women and Men
Cultural Constructs of Gender 281 (Prentice Hall 2001)
8 Jim Wafer, Muhammad and Male Homosexuality, in Stephen O. Murray & Will Roscoe, Islamic
Homosexualities: Culture, History, and Literature 89 (NYU Press 1997)
9 Wayne Dynes, Encyclopaedia of Homosexuality (New York 1990)
10 King James Bible, Ephesians 5:25-32
From these instances, it's evident that mainstream religions have been hesitant to accept samesex marriages or non-heteronormative sexual relationships. Here, the notion of same-sex partners getting married is considered unattainable. However, there is optimism that altering interpretations of religion could address this issue of societal perception. Over time, there's a possibility that public opinion will gradually shift in support of same-sex marriages within the Indian context. Nonetheless, this current state implies that same-sex relationships currently encounter an uncertain and challenging reality. GLOBAL PERSPECTIVES ON HOMOSEXUALITY AND SAME-SEX MARRIAGE Globally, diverse attitudes prevail regarding homosexuality and same-sex marriage, resulting in varying legal stances across countries.
While some nations are highly accepting and legally permit same-sex marriages, others strongly disapprove of homosexuality and may even criminalize it. Numerous countries worldwide have implemented anti-discrimination legislation and equal opportunity policies to safeguard the rights of homosexuals. The Netherlands set a precedent in 2001 by becoming the first country to legalize same-sex marriage, subsequently followed by 29 other nations including Belgium, Canada, Norway, South Africa, Argentina, New Zealand, England, Wales, France, among others. In 2015, the US Supreme Court delivered a landmark ruling in Obergefell v. Hodges11, decisively supporting same-sex marriage and granting marriage equality to same-sex couples. This pivotal judgment led to the recognition of gay marriage throughout the United States.
As of 2023, marriage between same-sex couples is legally conducted and acknowledged in 34 countries, with the latest addition being Andorra. Most countries across North and South America, as well as Europe, have embraced the legalization of same-sex marriage. However, in Asia, only two jurisdictions—Taiwan and Nepal as of 2023—permit it, while attitudes and laws in other regions remain divided. In recent developments, Hong Kong's highest court directed the government on September 5th to establish a legal framework for same-sex couples. Thailand is gradually progressing toward recognizing civil unions. Similarly, while Singapore's parliament lifted a ban on sex between men, it has yet to pave the way for marriage equality. 12
11 Obergefell v. Hodges, 576 U.S. 644 (2015)
12 Same-Sex Marriage in India
What Next After Latest Supreme Court Ruling, The Washington Post (Oct. 24, 2023), https://www.washingtonpost.com/business/2023/10/24/same-sex-marriage-in-india-what-next-afterlatest-supreme-court-ruling/67e1f96c-7243-11ee-936d-7a16ee667359_story.html (last visited September 12, 2023) In England, homosexual sodomy marriages between adults with consent are not illegal until they are 21 years old and are held privately.13 With this, around 155 million or approximately 2.5% of the world's population live in places where homosexual marriage is the same exists.14 Conversely, some regions have adopted more restrictive measures: Indonesia, which does not acknowledge gay marriage, recently implemented a ban on all extra-marital sexual relations. It is a heinous offence for more than
70 nations, it is also subject to execution in Afghanistan, Mauritania, Iran, Nigeria, Pakistan,
Saudi Arabia, Sudan, United Arab and Yemen and to lifetime incarceration in Burma, Bhutan, Georgia, Indonesia, Maldives, the United Arab Emirates and Yemen. Homosexuals often differ in their legal status from country to country. In England, for example, homosexual sodomy marriages between adults with consent are not illegal until they are 21 years old and are held privately. 15 INDIA'S STANCE ON SAME-SEX MARRIAGE: LEGAL, CULTURAL, AND SOCIAL IMPLICATIONS India's stance on marriage, inheritance, and adoption diverges from that of many liberal democracies due to the influence of religious personal laws. Hindu, Christian, and Shariat laws, alongside customary practices, regulate religious marriages, primarily for heterosexual couples. Introducing same-sex marriage contradicts religious and cultural norms, as marriage is traditionally viewed as a union between a man and a woman.
Modifying this traditional understanding of marriage is considered to oppose fundamental beliefs and values. Such alterations are believed to disrupt India's cultural foundations and the fabric of Indian society, potentially leading to adverse societal consequences. 16 The belief that marriage should solely involve a man and a woman stems from the idea that only this combination naturally allows procreation and proper upbringing of children. It has been argued that children have the right to both a mother and a father, which same-sex couples 13 Gay, Lesbian, and Bisexual in South Asia, http://www. fsw. ucalgary. ca/ramsay/gay-lesbian-bisexual/3ta-southasia- (last visited September 12, 2023) 14 Ojaswa Dev Jha & Shamrendra Vikram, Same-Sex Relationships and Marriage in India, 4 Int'l J. L. Mgmt. & Humanities 90 (2021) 15 Gay, Lesbian, and Bisexual in South Asia, http://www. fsw. ucalgary.
ca/ramsay/gay-lesbian-bisexual/3ta-southasia- (last visited Nov. 12, 2023) 16 Legal Cover to Same-Sex Marriage Will Shake India’s Cultural Roots: Body Writes to SC, Deccan Herald, https://www. deccanherald. com/india/legal-cover-to-same-sex-marriage-will-shake-indias-cultural-roots--bodywrites-to-sc-1217522. html (last visited September 13, 2023) cannot inherently provide. Concerns arise regarding potential negative outcomes for children raised by same-sex parents, including emotional distress or behavioral challenges. In societies like India where LGBTQIA+ acceptance isn't widespread. Legalizing same-sex marriage might also lead to a surge in legal issues related to adoption, inheritance, tax, and property rights, posing a challenge to existing laws and regulations.
Additionally, experiences from countries where same-sex marriage is legalized have shown cases of individuals facing public shame, guilt, and family relationship strains following divorce post-legalization. Same-Sex Marriage entails Identity-crisis (just like what is happening in USA) and after that Identity Politics. It has been argued that granting same-sex couples the same legal rights and protections as opposite-sex couples is crucial. The non-recognition of same-sex marriage is viewed as a form of discrimination that infringes upon the dignity of homosexuals. Legalizing same-sex marriages is seen as a vital step toward advancing equality and preventing discrimination.
The legalization of same-sex marriages would provide legal recognition and protection for these couples, allowing access to various benefits such as inheritance rights, joint ownership of property, and healthcare privileges. Denying same-sex couples the opportunity to marry essentially deprives them of these legal safeguards. Additionally, legalizing same-sex marriages is believed to promote societal acceptance of LGBT individuals and relationships, thereby contributing to a reduction in discrimination and stigma. Research suggests that same-sex couples are equally competent in raising children as oppositesex couples17. There is no inherent advantage or disadvantage regarding parenting skills when comparing same-sex couples to heterosexual couples.
The legalization of marriage for samesex couples would validate their relationships in the eyes of family members, potentially fostering increased comfort and support due to changing social norms. This could lead to both direct and indirect improvements in the social inclusion of sexual minorities at the community level, ultimately contributing to a significant reduction in anti-gay sentiments within society. JUDICIAL EVOLUTION OF LGBTQ+ RIGHTS IN INDIA: KEY JUDGMENTS AND THE DEBATE ON SAME-SEX MARRIAGE The Supreme Court since approximately the last 10 years had passed plenty significant 17Helena Campos Refosco & Martha Maria Guida Fernandes, Same-Sex Parents and Their Children: Brazilian Case Law and Insights from Psychoanalysis, 23 Psychoanalysis Insights (2016-2017) judgements to clear path for recognition of basic rights of this marginalised group.
Firstly, providing them the right to equality18 and article 15 which speaks about the prohibition of discrimination on the grounds of religion, race, caste sex or place of birth. Thereafter article 21 which ensures the right to privacy and personal dignity to all the citizens. The constitution provides for the fundamental right to equality with no exception left for discrimination on the grounds of sex, caste, creed, or religion. Additionally, the Constitution also guarantees political rights and other benefits to every citizen19. Despite these, in practicality, the homosexuals are in no better place and continue to face problems like social stigma, legal exclusion, and limited guarantee of law for their protection.
Unspecified rights under Article 21 of the Indian Constitution have developed progressively, involving aspects such as the right to privacy from the Justice Puttaswamy Case20. Moreover, this evolution encompasses the rights for non-heterosexual individuals to cohabit, engage in relationships, and form unions. The Court ruled that, “'The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and
21 of the Constitution.”
The Delhi High Court, in Naz Foundation21, declared Section 377 of the IPC as unconstitutional for having in violation of Article 14, Article 15 and 16 (the equality rights) of the Constitution of India. Although the Supreme Court overturned the Delhi High Court's decision in Suresh Kumar Koushal case22 and the apex court ruled that Section 377 does not explicitly pertain to or categorize any specific gender or group. It was determined that certain forms of sexual intercourse should be penalized, and the court concluded that Section 377 does not contravene Articles 14, 15, or 21 of the Constitution. In the case of National Legal Services Authority v. Union of India23, the Supreme Court gave legal recognition to non-binary or transgender persons as a “third gender”.
The Supreme Court asked the central and state governments to recognize transgender people's gender identities, regardless of whether they identify as male, female, or as a third gender. Subsequent to this
18 Constitution of India, art. 14 (1950)
19 Indian Bar Review, 45(2) (2018)
20 Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
21 Naz Foundation v. Government of NCT of Delhi, AIR 2009 Delhi 227
22 Suresh Kumar Koushal v. Union of India, AIR 2014 SC 563
23 National Legal Services Authority v. Union of India, AIR 2014 SC 1863
direction of the Supreme Court, legislative developments followed to provide a clear statute which culminated in 2019 with the Transgender Persons (Protection of Rights) Act, 2019. Eventually in Navtej Singh Johar Case, the five-judge bench of the Supreme Court unanimously held Section 377 as unconstitutional. While overruling its previous verdict of Suresh Koushal v. Naz Foundation and considering the ruling of National Legal Services Authority v. Union of India it held that, choosing a partner of one’s own choice is a right enshrined in the Constitution of India and such right cannot be violated on the ground that consensual homosexual intercourse is against public morality. Right to marry – A Fundamental Right or Not The right to marry is not explicitly acknowledged as either a fundamental or constitutional right within the Indian Constitution but is considered a statutory right.
In India, marriage is governed by various statutory laws, and its recognition as a fundamental right has primarily evolved through judicial interpretations and decisions made by the Supreme Court of India. Although previous pronouncements of the Supreme Court have interpreted Article 21 to include Right to Choose and even Right to Marriage under the Lata Singh case24 as fundamental rights. In the case of Shafin Jahan25, the Supreme Court noted that an individual's choice of a partner, whether within or outside the institution of marriage, remains solely within the individual's domain, and the State cannot impose restrictions or curtail the freedom to select a partner. The Supreme Court highlighted that the right to marry a person of one's choice is an essential aspect of Article 21 of the Constitution, which guarantees the right to life and personal liberty.
The observation of the Supreme court in the case of Shakti Vahini26 was that the individual dignity which is a fundamental rights under article 21 includes right to make choices and “that when two adults choose to marry out of their own volition they have a right to do so. The judgment of Madras High Court in the case of Arun Kumar27, for the first time, gave legal recognition of a union between a man and a trans-woman. It held that ‘bride’ under the Hindu Marriage Act would cover transgender persons who identify as women.
24 Lata Singh v. State of Uttar Pradesh, AIR 2006 SC 2522
25 Shafin Jahan v. Asokan K.M., AIR 2018 SC 357
26 Shakti Vahini v. Union of India, AIR 2018 SC 1601
27 Arun Kumar & Other Vs. The Inspector General Of Registration & Others W.P. (MD) NO. 4125 OF 2019
In Navtej case28, the Supreme Court, while decriminalizing homosexuality, did not affirm that the Constitution acknowledges a right to marry. Chief Justice Dipak Misra, in the majority opinion, emphasized an individual's right to union under Article 21 of the Constitution. Neither the majority judgment in the Justice KS Puttaswamy case nor the majority in the Navtej case explicitly affirmed that the Constitution guarantees the right to marry. Additionally, Justice Nariman's opinion in the Justice KS Puttaswamy case briefly mentioned the right to marry without associating it with any fundamental rights, nor did it delve into the extent or nature of such a right. Supriyo v. Union of India In this landmark judgment the Supreme Court of India declined to grant legal recognition to same-sex marriages.
The five-judge unanimously held that the right to marry is not a fundamental right for queer persons. The court also said that it is beyond its scope and should be decided by parliament. However, the court emphasized that queer relationships should not face discrimination by the state. The court ruled by a 3-2 majority. the constitution does not expressly recognize a fundamental right to marry. There cannot be a per se assertion that there exists an unqualified right to marry which requires treatment as a fundamental freedom. 29 The union in the form of marriage between homosexual couples is not allowed under the provisions of SMAl. If the SMA is declared null and void for excluding same-sex couples, India will be returned to a pre-independence era in which two people of different religions and castes were unable to express love through marriage.
As a result, marriage is not permitted under the rules of the SMA30. gender-neutral interpretations of current rules will complicate an already difficult path to justice for women and allow the criminal to victimize them. The essential lawmaking power is vested primarily with the legislature, the judiciary cannot step into the shoes of law-making which are predominantly policy decisions Transgender individuals in heterosexual relationships and intersex persons identifying as either male or female possess the right to marry under current laws, including personal laws governing marriage. However, the current situation allows single individuals to adopt and subsequently form a couple, thus exercising their choice. This scenario, in practice, denies the
28 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
29 SCC Online, https://www.scconline.com/blog/post/2023/10/18/supreme-court-verdict-on-same-sex-marriagebreakdown-of-the-agreements-and-disagreements-legal-news-lgbtqia/ (last accessed on September 18, 2023)
30 Special Marriage Act, 1954
children of these relationships certain legal and social advantages that are typically available to children of a married couple. In contrast, the dissenting judges, Justices D.Y. Chandrachud and Hima Kohli held that the right to marry should indeed be regarded as a fundamental right and an integral aspect of Article
21. Section 4(c) of the Special Marriage Act does indeed violate the fundamental rights of
same-sex couples., Dissenting judges advocate for the immediate recognition of the fundamental right to marry for all couples, irrespective of gender or sexual orientation. Unmarried couples (including queer couples) can jointly adopt a child. Regulation 5(3) of the Adoption Regulations31 is ultra vires the Juvenile Justice (Care and Protection of Children) Act, 2015, Articles 14, and
15 CONCLUSION
In India same-sex marriages have still neither been legalised nor socially accepted. In its most recent judgment, the Supreme Court has left the matter of legalizing same-sex marriage to the parliament. The current societal setup does not seem to be ready to create a more inclusive society so as to include homosexuals and recognize same-sex marriages. It requires careful consideration of the rights and dignity of all individuals involved, while also respecting diverse perspectives on the meaning and purpose of marriage.
There should be legalization of same sex marriage for that the state has several policy options at its disposal: it can opt for gender-neutral amendments in marriage and family-related laws, establish a distinct statute similar to the Special Marriage Act, 1954 (SMA) but in gender-neutral terms to provide the queer community a route to marriage, introduce legislation for civil unions, domestic partnership laws, or explore various other alternatives. Ultimately, the resolution of this debate involves balancing competing values, including equality, individual rights, religious freedom, and societal norms. Legal recognition of same-sex marriage can contribute to greater social acceptance and equality. It is not about disrupting the equilibrium of society but about creating a more just and equal society where all individuals are treated with respect and dignity regardless of their
31 Central Adoption Resource Authority (CARA), 2022
sexual orientation and gender identity. To deny such rights is a violation of basic fundamental human rights and goes against the principles of equality. The decision that the recognition of marriages of same-sex couples is not included within provisions of the Special Marriage Act, 1954 that such was not the object of the Special Marriage Act and therefore it cannot be termed as discrimination. But this argument can be refuted based on the doctrine of indirect discrimination which was discussed by the Supreme Court in Col. Nitisha’s case32. This doctrine suggests that the discriminator cannot escape the constitutional obligation by relying on the intent or object. Instead, the court must look at the impact of the law on a particular group. Homosexuality is not a Western concept or against Indian culture. Such communities have existed in India for thousands of years.
Some instances regarding this are the ancient book Kamasutra mentioned it, and there is a reference to it in the epic Ramayana and the sculptures at the Sun Temple Konark. The majority should not have the right to decide the future of the minority, law should not be based upon the majority public opinion and morality rather it should be based on the fundamentals of the constitution's morality.
32 Lt. Col. Nitisha and Ors vs Union Of India, (2021) 15 SCC 125