Legalizing Same-Sex Marriages Calls For A Wider Social Debate: Vivek Sood

As part of BW People's coverage for pride month, Senior Advocate Vivek Sood says that Indian society needs to evolve before addressing the question of the recognition of same-sex marriages.


Q. For the benefit of our readers, could you please give a gist of the current case seeking the legalization of same-sex marriages before the Supreme Court?

In my understanding, many petitions were filed by different stakeholders including, same-sex couples apart from the NGOs and the activists. These petitioners are arguing for the legal acceptance of same-sex marriages in India. 

The main ground raised in these petitions is that the non-recognition of the right to marry between same-sex couples is a violation of Article 21 and Article 14 under the constitution of India. 

This essentially means that same-sex couples are pleading that the right to marry is an extension of the right to life and liberty granted under the Constitution.  To put it simply, the LGBTQA  community is saying that it should not be discriminated against as compared to heterosexual couples in the aspect of marriage and other consequential rights.

During the proceedings before the Supreme Court, reliance was placed on the evolution and recognition of LGBTQA rights including the right to marry in many advanced democracies around the world for seeking the legalization of same-sex marriages in India.

Q. From decriminalization of same-sex relationships to advancing the cause of legalization of same-sex marriages, how has the socio-legal landscape in India evolved?

In my view, the socio-legal landscape has evolved in three phases. There was a time when gay and lesbian relationships were criminalized under the Indian Penal Code. This led to the social ostracism of the LGBTQA community for numerous decades. Gay and lesbian sex during this time frame was considered unnatural and against the order of nature. 

But then came the landmark judgment in Navtej Singh Johar Vs Union of India which struck down Section 377 of the IPC and paved the way for consensual same-sex relationships.

I would say that we are currently in phase three where Navtej Singh Johar is percolating in society and now the society is gradually opening its doors towards acceptance of same-sex relationships. 

Many more people are coming out of the closet and openly declaring that they are in same-sex relationships. Having said so, It's only the beginning of the third phase. I would say the acceptance factor, still, has to percolate deep into society.

When more and more people can accept same-sex relationships in a dignified manner without resorting to any violence, ostrichism, and hatred against same-sex couples, I would say that would be a more mature society. That will be the time when we can talk about legalizing same-sex marriages. So this is the social evolution that I can see.  And in a democracy like India, the social construct around the LGBTQA community calls for a wider debate.

Q. Biological procreation is an important aspect when it comes to marriage between heterosexual couples. Would it be a reasonable differentiator when it comes to legal recognition of same-sex marriages?

Procreation, perhaps, will not be the only consideration to legalize or not to legalize same-sex marriages. Procreation is only a consequence of marriage. It is a choice to be exercised by the couple. Procreation is not out of necessity.

In my view, it is not relevant to the subject matter of the case.

Q. Does the ruling in Navtej Singh Johar make the right to marriage a fundamental right or does it remain a social contract regulated by personal laws only?

The right to marry is a fundamental right under the Constitution and personal religious laws. But so far, this right extends only to a biological man and woman as of now.

Q. Judiciary or the legislature, who should regulate the subject of same-sex marriages?

In my view, as of today, the power to legislate on the matter should be left to the wisdom of the parliament and the judiciary should follow the hands-off approach at this point in time. 

Please understand the gamut of laws that need to be revisited. From adoption laws to domestic violence laws, it will be a mammoth legislative exercise. Laws on inheritance will also need to be looked at. These are just a few examples. Around 150 laws would require a re-look. 

If the Supreme Court was to legalize same-sex marriage, I would call it a clear case of judicial legislation and judiciary going beyond its domain of adjudication. If the parliament remains silent on this issue for a very long time in the future, then maybe the judiciary could step in to decide the issue of legalizing same-sex marriages.

Q. In essence, Same-sex couples are fighting for day-to-day rights like social security benefits, and signing forms for mediclaim policies. The need is also accentuated by the problems the community faced during the covid crisis. Do you see the court or legislature opting for something ' short of a civil union ' for granting rights like social security benefits to LGBTQ couples?

A beginning can be made on this account. And again, I would say that the legislature and the executive should make the first move in this direction. Day-to-day things like getting a passport made or filling up forms or insurance policies and applying for mediclaim and social security benefits.

Steps can be taken for the welfare of the LGBTQA community, but in my view, the approach needs to be slow and steady.

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