Though same-sex marriage is not legalised in India per se and no reference of the same can be deduced from the ancient or historical writings & books, doesn’t directly relate that same-sex marriage is expressly prohibited in the country which preached the concept of UNITY IN DIVERSITY!
The then Chief Justice of India has beautifully portrayed in relation to same-sex marriage in the landmark case of NAVTEJ SINGH JOHAR v/s. UNION OF INDIA & ORS.[i] that,
“If biology determines our expression, then there is no reason to think about making better or different worlds. It has all been decided, from the moment we became Homo sapiens. Yet if we recognise sexuality as constructed, we open up essential discussions about some of the most important aspects of life. Who are we sexually intimate with, and how? What do we do with the consequences of sexual intimacy (offspring and health)? Who is responsible for children’s lives, development and education in a society? The arrangement of sexual relations is the key social building block of society’s reproduction. Hence the importance of gay marriage. Yet we have a surprisingly limited way of engaging this conversation; indeed, biological determinism helps us avoid the issue altogether. A host of social issues are pressing down upon us………. including sexuality, and thereby close off discussions before they begin.”[ii]
But analysing this judgment to its fullest crest, it has neither formulated any guidelines for the recognition or legalisation of same-sex marriages, nor it has by itself opined in relation to the same. Therefore, the question ‘whether India has moved a step forward in the area of same-sex marriages after the delivery of this judgment?’ STILL REMAINS A COMPLICATED MYSTERY!
The Johar’s Judgment and Same-Sex Marriages: A sigh of Relief
The point of attraction during the delivery of the Johar’s Judgment was that it went on to strike down the 200 years old draconian provision of Section 377 of the Indian Penal Code 1860 by making the consensual carnal intercourse between human being, as UNCONSTITUTIONAL.
As the absence of express provision relating to Same-Sex Marriage has created a dilemma on its legal validity, so the same was tested on the premise of sexuality & reproduction. If we go through the religious pathways, marriage for Hindu religion is a sacrament & reproduction its main tenet, because an elderly can move on the path of Salvation only if his/her child performs the specified rites, whereas Muslim religion preaches the concept of contractual marriage, mainly for the purpose of determining the legitimacy of the child born during such relationship.
Thus, the main tenet or aim of marriage was seen to be for reproducing off-springs and this condition of marriage cannot be fulfilled in the same-sex marriage, as reproduction is not possible and further, the only way for the same sex individuals to have sex was by way of Carnal Intercourse, which has been criminalised by virtue of Section-377 of the IPC, 1860.
And, after this reasoning, it was stated that Bharat in its true senses doesn’t adopt the nullity of the same-sex marriages, but if such relationship is entered then they are prohibited to enter into sexual intercourse (whether with or without consent, of any kind).
This taboo was seen to be diminished on the 6th Day of September 2018, when the judgment in the Johar’s case was delivered, breaking the chains of orthodox presumption & aim of marriage and now, there is a sigh of relief for the LGBT+ Community to enter into sexual intercourse (consensual) without the fear of being dragged into the courts of law and there are many instances to quote, where the individuals have solemnised same-sex marriages after this judgment and are living their life, HAPPILY!
Challenges posed by Johar’s Judgment: Twin-forked effect on Same-Sex Marriages
Though indirectly a green flag is shown to Same-Sex Marriages, this judgment has rendered many criticisms of its own. The judgment is silent on recognition of same-sex marriages, but allowing carnal intercourse which in itself could be harmful without giving safety tips has created haphazardly in the medical fraternity, where people being unaware of the consequences of carnal intercourse are now being allowed to do so that too without any regulatory mechanism.
Moreover, the rigidity of personal laws and non-availability of specific same-sex marriage statutes will be a greater concern to decide the cases of maternity, abortion, adoption, Succession, Inheritance, Guardianship, Minority and most importantly the legitimacy of the child born in such wedlock.
Another contrasting feature is the absence of Public Opinion in delivering of the judgment, where on one side the Union Government has decided not to object on the issue of Section-377 and another is that the Judging panel was pre-determined and prejudiced towards nullifying a part of Section-377 of the IPC will definitely raise the problem of acceptance by the whole nation which could result in the aftermath that happened in the Sabarimala Judgment.
Therefore, analysing the global perspective on the same-sex marriages, it is evident that in the near future, India too will ponder about the inclusion of such marriages in its legal perspective because of its tolerance nature and the primary principle of Unity in Diversity.
Moreover, it can be thumped now after the Johar’s Judgment that though express or direct recognition to same-sex marriages is not upheld, but the essence & spirit of the Judgment clearly echoes the acceptance & legality of the same under the garb of Transformative Constitutionalism & Doctrine of Progressive Realisation.
[i] Navtej Singh Johar & Ors. v. Union of India, Writ Petition (Criminal) No. 76 of 2016 (India).
[ii] Swapnil Tripathi, The impact of Section 377 Judgment on Heterosexual Relations, LIVE LAW.IN (Feb. 25, 2019, 06:42 PM), https://www.livelaw.in/the-impact-of-section-377-judgment-on-heterosexual-relations/.
[iii] Michael Safi, Campaigners celebrate as India decriminalises homosexuality, THE GUARDIAN (Feb. 28, 2019, 08:16 AM), https://www.theguardian.com/world/2018/sep/06/indian-supreme-court-decriminalises-homosexuality.