Same-sex marriage: When the Supreme Court of India rules against legalising same-sex marriage on 17th of October, it comes a full circle as almost a decade ago on 11th of December in 2013, it reversed the Delhi HC’s decision to decriminalise homosexuality, stating, “it was up to the Centre to legislate on the issue.”
While the visibly disappointed LGBTQ+ community expressed resolved and solidarity for a continued strive, the verdict doesn’t leave them all empty handed. While the court didn’t go as far as endorsing equal marriage rights, it did acknowledge the rights of gay couples. This is definitely some steps forward in the struggle for the recognition of the rights of this community when article 377-criminalising same sex relationship, was challenged for the first time in 1994.
3:2 verdict of a five judge bench ruling against legalising same-sex marriages, while pronouncing its order on a batch of pleas seeking marriage equality in India, refused to tweak the Special Marriage Act to recognise same sex marriages and maintained that only the legislature can do it.
The Supreme Court emphasised that the creation of such legislation falls within the purview of Parliament.
Following a series of hearings in the supreme court between April-May 2023 the issue had been debated for social and legal ramifications in case the same-sex marriages are legalised.
Rights of same-sex relationship in India
Same sex relationships in India has been a crime as an unnatural criminal offence under section 377. The first challenge to article 377 in 1994 by AIDS Bhedbhav Virodhi Andolan was however dismissed.
The turning point in the struggle for recognition of same-sex relationship came through when a Public Interest Litigation (PIL) was filed by Naz Foundation challenging Section 377 in Delhi High Court in 2001.
The High Court ruling on the PIL in 2007 which struck down the law decriminalising homosexuality in India for the first time was a turning point. The ruling which stated that Section 377 was unconstitutional, acted as the ground for a walk towards LGBT Rights and Laws in India. The HC back then said that penalising such actions violated the right to privacy and personal liberty under Article 21 of the Constitution. Doing so was also found to be against the right to equal treatment (Article 14) and the prohibition of discrimination
Recognition of ‘third gender’ by the Supreme Court further pushed the tables in social and legal acceptability as it paved the way for changes leading to their right in jobs, changes in the category of ‘sex’ option while filling the form in schools, right to vote, contest and government jobs.
Further, in 2018 a portion of section 377 was struck down. The verdict came on a petition by choreographer Navtej Singh Johar and 11 others challenging the constitutional validity of Section 377. In this historic verdict, then Chief Justice of India Deepak Misra said, “Social exclusion, identity seclusion and isolation from the social mainstream are still the stark realities faced by individuals today and it is only when each and every individual is liberated from the shackles of such bondage and is able to work towards the full development of his/her personality that we can call ourselves a truly free society.”
With the passage of Transgender Persons (Protection of Rights) Bill, with some limitations in Parliament in 2019 and revision of Transgender Persons (Protection of Rights) Rules in 2020 by the Ministry of Social Justice and Empowerment the struggle for acknowledgement and recognition of rights, freedom and privacy of LGBTQ+ community has come a long way.
Here’s a look at the timeline of LGBTQ rights ruling in India:-
1994: First challenge to Section 377 filed by AIDS Bhedbhav Virodhi Andolan but dismissed.
2001: PIL by Naz Foundation challenges Section 377 in Delhi High Court.
2009: The Delhi High Court, in Naz Foundation vs NCT of Delhi, ruled that Section 377, which criminalised same-sex relationships, was unconstitutional, and struck the law down, decriminalising homosexuality in India for the first time. The ruling acted as the ground for a walk towards LGBT Rights and Laws in India.
The HC back then said that penalising such actions violated the right to privacy and personal liberty under Article 21 of the Constitution. Doing so was also found to be against the right to equal treatment (Article 14) and the prohibition of discrimination (Article 15).
2014: Supreme Court dismisses review petition against its Section 377 verdict, deeming LGBTQ community “miniscule.”
April 2014: Supreme Court recognizes transgender people as a third gender.
August 24, 2017: Supreme Court safeguards Right to Privacy, granting freedom to express sexual orientation.
September 6, 2018: Supreme Court strikes down part of Section 377 criminalizing consensual homosexual activities. A five-judge SC bench, which included then Chief Justice of India Deepak Misra, passed a historic order.
November 26, 2019: Parliament passes Transgender Persons (Protection of Rights) Bill, with some limitations.
July 2020: Ministry of Social Justice and Empowerment revises Transgender Persons (Protection of Rights) Rules, 2020.
Timeline of hearings by Supreme Court which ruled against against Same-sex marriage
November 25, 2022: Two gay couples petition the Supreme Court for same-sex marriage recognition.
December 14: Supreme Court issues notice on a plea by a gay couple seeking marriage recognition.
January 6, 2023: Supreme Court allows transfer of similar pleas from high courts, posts hearing to March 13.
March 13: Supreme Court refers the matter to a five-judge Constitution Bench, recognising its importance.
April 18: Constitution Bench starts hearing petitions related to same-sex marriage recognition, focusing on the Special Marriage Act.
May 11: Bench reserves verdict after a 10-day hearing, emphasising it can’t direct legislation or policy making.