Same Sex Marriages, “No, we don’t do that Here”, Centre tells SC : A Critical Analysis

By Varunendra Pandey, Content Writer, Lexstructor

Sin, crime, pathology, and what not, homosexuality in India has been through various roads and canals to reach to this day where consensual sexual activities between same-sex persons is no more a criminal offence[1].The ancient history of homosexuality is quite rich in India, it was after the drafting of the Indian Penal Code in 1860 by Lord Macaulay and its introduction in 1861 which formally reserved a section objectifying it a criminal offence. Although it’s worth noting that this inhumane law was repealed in Britain by Sexual Offences Act, 1967 on the recommendations of the Wolfenden Committee[2] in 1957 owing to the changing dynamics of society but on the other side India is still stuck upon a limited approach towards freedom of sexual orientation.

Love need not take an explicit sexual form and it is nearly always expressed in poetic excess and metaphoric power[3], writes Ruth Vanita in the preface of same sex love in India. Homosexuality is no disease that should be cured it’s just another expression of human sexuality.[4]

The Rights of LGBT in India has had a long journey and still much remains to be achieved. Fair administration of the LGBT rights in India depends a lot upon the approach by the legislature. Are they looking for a win-win situation or do they actually acknowledge the wrong done to members of LGBT groups and plan to turn the table completely?

The Naz Foundation Judgment

Delhi High Court while deciding whether section 377 of IPC was discriminatory to a particular group of people primarily pertained to three issues. , Right to privacy was not defined expressly, although it impliedly existed under Article 21. The court determined that the Section 377 was violative of Article 15 and reiterated the principles of inclusion ingrained in our constitution, “the antithesis of quality that is recognition of equality which will foster the dignity of individual” . [5]

Suresh Kumar Kaushal Judgement

In December 2013 the LGBT suffered a major blow after Supreme Court overturned the Delhi High Court decision of decriminalizing consensual gay sex (LGBT). The apex court dejected itself of the idea of section 377 suffering from any kind of unconstitutionality.[8]

Navtej Singh Johar Judgment

The 5-judge bench hears the petition filed against the violative nature of section 377, Justice Indu Malhotra says that “it’s not an aberration but a variation”. The court decided to scrap the section to the extent where it criminalizes consensual sexual activity between persons of same-sex.[7]

In a recent PIL filed in Supreme Court for legalizing gay marriages, Tushar Mehta the solicitor general argued on behalf of the Government that, “our legal system, society and values do not recognize marriage between same sex couples”. [8] The Argument by SG has received widespread outrage not only by LGBT community but activists and intellectual groups as well, but why?

It is very significant to analyze Tushar Mehta’s statement in the light of a Freshly decided case decriminalizing consensual Gay sex (LGBT). The Navtej Singh Johar judgment may have fueled the annihilation of section 377 and its draconian nature but has still left a lot of speculations that are open to interpretations and manipulations. The judgment text specifically mentions “The provisions of Section 377 will continue to govern non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality”, which says nothing about the same sex marriage, and with this approach of Government towards rights of LGBT members the road for their inclusion in the society is not as easy as this celebrated judgment made it look. With Government not inclining itself towards same sex marriages flashes their undecided opinion on the matter.

The other thing that this case brought forward is that section 377 has only been decriminalized to the extent of criminalizing consensual sexual activity between same-sex which means it is still partially operable for accounting for the non-consensual activities between same-sex, which for the record is not termed as rape because apparently only man can rape but cannot be raped. Where a man or a woman without the free consent of other man or woman get involved in the forced sex what would be that called? What would be the charges framed? Will it be a rape or not?

Since there are a lot of ambiguities, tons of changes have to be made in existing criminal and civil cases as well. Why not acknowledge LGBTQ members absolutely and changes are made accordingly as the laws are ought to modify in any case.

Rights may or may not be absolute but recognition of those rights is the sine qua non for their justifiability.



[1]  Indian Penal Code, 1861, Section 377

[2] Amit Kumar Sinha, Homosexuality in India Better Late Than Never, Indian Law Journal (Oct 10, 2020, 11:36 am),

[3] Ruth Vanita & Salim Kidwai, Same sex love in India: readings from literature and history, (1 ed, 2000)

[4]  Sinha, Supra Note 2

[5] Naz Foundation v. Government of NCT of Delhi and Others, 160 (2009) DLT 277

[6] Suresh Kumar Kaushal v. Naz Foundation SLP(C) No.15436/2009

[7]  Navtej Singh Johar & Ors. Vs. Union of India & Ors AIR 2018 SC 4321

[8] Upmanyu Trivedi, Bloomberg, Same-sex marriage not permissible: Solicitor General Tushar Mehta in Delhi HC, (Oct 10, 2020)

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