The Constitutionality Of Same Sex Marriages

By Swapnil Katiyar, Dr. Ram Manohar Lohia National Law University, Lucknow.

On April 17, 2018, British Prime Minister Theresa May addressed at the Commonwealth Joint Forum Plenary, expressing her remorse for their country's discriminatory legislation, such as criminalizing same-sex relationships, and the legacy of prejudice, violence, and even death that still exists today. She then emphasized her discourse on the inherent misuse of power and the wrongs that these laws cause.

It was also the same year that the Supreme Court of India, in the landmark case of Navtej Singh Johar versus Union of India, decriminalized homosexuality on September 6, 2018, signaling that India had finally arrived in the twenty-first century in terms of human rights. Unfortunately, People had no idea that the Central Government would take on the role of stubborn kid, fighting the LGBT Community's rights, even after this. The Centre's reaction to the Delhi High Court's petitions for recognition of same-sex weddings under the Hindu Marriage Act (S. 5), the Special Marriage Act (S. 4), and the Foreign Marriage Act echoed this (S. 4).

Marriage is a tie that exists between two people, but it does not foster individualism in any way. Marriage, or a person's selection of a mate, is a personal matter upon which no one should interfere, be it the administration, society, or so-called communal conventions. Everyone has the right to select their own identification and to love or be attached to whomever they choose. Marrying the individual of one's preference is an expression of the Indian Constitution's promise of individual liberty and freedom.

Right to Marry

The freedom to marry has been recognized as a basic right in India on numerous occasions, under the umbrella of Articles 21 and 19. The ideal way should have been to read these decisions as gender-neutral to uphold judicial activism.

J. Chandrachud held in Shafin Jahan v. Asokan K.M. &Ors. that Article 21 of the Constitution guarantees the freedom to marry the person of one's choice, and that the preference of a partner is solely up to the individual. He highlighted that social approbation is not a prerequisite for recognizing private personal decisions.

The Supreme Court also held the same in Shakti Vahini v. Union of India by highlighting that two adults selecting each other as life partners consensually is an expression of their choice recognized under Articles 19 and 21 of the Constitution.

Right to Privacy

In Justice KS Puttaswamy (retd) and Anr. versus Union of India and Ors., a nine-judge Supreme Court bench unanimously concluded that "the right to privacy is safeguarded as an integral aspect of the right to life and liberty." The fundamental right to privacy in India was held to cover privacy of choice, which protects an individual's discretion over core individual choices.

The Court stated at the conclusion of its decision,

"The preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home, and sexual orientation are at the heart of privacy." The term "privacy" also refers to the right to be left alone. Individual autonomy is protected by privacy, which recognises an individual's ability to control important parts of his or her life. Privacy is inextricably linked to personal choices that define one's way of life......”

It’s an irony in itself that the Central Government at one point opposed same-sex marriages because of social norms, and those same cultural beliefs regard marriage to be a private affair of two persons, despite the Supreme Court's recognition of the Right to Privacy. With the Right to Privacy on the table, same-sex marriages should have been implicitly acknowledged by default up until now, and even if they weren't, there's no purpose in disputing them. The refusal of the government to acknowledge same-sex marriages implies that either marriage is not a private affair or that the government does not appreciate the right to privacy.

It is our option, not society's, to choose our mate, and society ought not to be entitled to do so or impose its myopic viewpoint, prejudices, or biases on us. 

Same Sex Marriages

There's no point in excluding same-sex couples from the Constitution's Right to Marry a Person of One's Choice, which has been reaffirmed time and time again as a feature of Article 21. The only difference between same sex couples and heterosexual relationships is the sex of the partners. Same sex couples share the same affection, love, and trust for each other – things that are considered important facet of marriage by the same society whose moral compass is stopping the government from recognizing same sex marriages.

People who claim that homosexual couples are unable to have children should also reconsider what marriage is all about and whether it is solely about childbearing. Furthermore, homosexual couples should be permitted to adopt children (which they currently cannot because the rules only permit married couples or people to do so), and that they can be just as strong and effective parents as a heterosexual pair. If same-sex couples are allowed adoption rights, millions of orphans can have parents, which becomes even more important after the epidemic, when the world has seen that we all need support, care, love, and empathy.

With the ruling in Lakshmi Kant Pandey versus Union of India, it is acceptable to assume that a child would be far happy with his or her parents (regardless of their sexual orientation) than in an orphanage. In order for same-sex couples to be permitted to adopt, either they must be granted marital rights or the Adoption Regulations must be altered. Not recognising the adoption rights of LGBTQ+ people (particularly same-sex couples) is very much like the state imposing its conventional morality.

As marriage is a personal matter, people should be free to choose who they wish to spend their whole lives with. Constitutional morality should take precedence over social morality since morality is a relative thing. The right to equality is guaranteed by Articles 14 and 15 of the constitution. Article 21 also which deals with the right to life and personal liberty, is a broad article that encompasses the inherent right to marry the person of one's choice. Thus, these laws should play the role and not social conventions.

Because the wording "any two persons" has been used in Section 4 of the Special Marriage Act, it is argued that it already has enough room to recognize same-sex weddings. Furthermore, in case the Hindu Marriage Act is inferred loosely to include the definitions of bride and bridegroom to accommodate same-sex marriages, or if homosexuals are considered a separate community, their marriage can be recognized as falling under their customs, as was the case with the recognition of Self-Respect marriages. The last and most severe alternative for the judiciary (given the government's unwillingness) is to either introduce new portions into the relevant legislation to allow same-sex marriages, or to read down the acts/specific sections for violating fundamental rights.


The decriminalisation of 377 was merely the first battle; the conflict is still ongoing. There is a struggle to be fought for every basic right of LGBT people. The prohibition of same-sex marriages appears to be a manifestation of a paradox in which one group of people is granted rights because of the Constitution, while others are denied those same rights in the name of tradition and societal taboos.

All sexual orientations, including sexual minorities and transgender populations, are entitled to protection, according to the J.S. Verma Committee Report. The Constitution encourages people to change their minds and have a better understanding of the world around them. It is also a legally binding document that protects the rights of sexually oppressed people.

The assessment made by J. Chandrachud in the Navtej Johar judgement in para 156, in which he particularly held that members of the LGBT community "are empowered, as all other citizens, to the full spectrum of constitutional rights, such as the liberties guaranteed by the Constitution" and are entitled to "equal protection of the law" is a crucial one to keep in mind and recollect every time the LGBT community has rebuffed a right because of their gender identification.

The fight for equality never truly ends, only parts of it do. One fight comes to a close, and another begins. Allowing same-sex marriages in India is a must if Articles 14, 19, and 21 of the Indian Constitution are to be fully implemented. However, recent judgments by the High Courts of Orissa, Punjab & Haryana, and Uttarakhand have provided some optimism by explicitly recognizing and defending the freedoms of same-sex partners to reside jointly. One can only hope that the same course of action is taken for same-sex marriages and adoption rights.


Views expressed are the author’s own, 

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