Analyzing Gay rights in India post-Navtej Singh Johar judgement.

Analyzing Gay rights in India post-Navtej Singh Johar judgement.


After the Navtej Singh Johar Judgment, homosexual relations have permanently been legitimized. Homosexuals can now openly be in relationships, without any terror of penal charges. Nevertheless, only the legitimization of connection will not completely resolve the dilemma. Indian community as a whole is yet not very exposed to such relations, several people treat it as a taboo, view it strange, against the law of God, and wrong. Also, India is a nation with several religious traditions, and personal laws are often administered by these sacred traditions and practices, and most of the religions vehemently oppose these relationships. Nevertheless, we can see this decision as a step towards addressing people more patient and admitting towards homosexual relations.
The judicial and parliamentary discussions about the legalization of same-sex marriage include many unsolved – and maybe unsolvable – discussions such as the meaning of marriage, the definition of family, the idea of virtue, the right of privacy, the impact of religion, the extent of civil rights and the government plans concerning these matters.[1]

Marriage as an institution

We first need to explain marriage as an institute. It is a complicated set of personal preferences, social standards, religious practices, and legal restrictions that manage a distinct private human relationship over some time. [2] Or we can say the alliance is a long-term intentional agreement of private parties for mutual generation and consumption. Husband and wife swap spousal service and spend – in reliance on the engagement they give to each other – in asset-specific to the marriage. While they sacrifice possibilities for marriage and other exercises. [3]

Even though it is a private organization, it has been managed by the community, depending on the particular time and history, spiritual insights, legal rules or methods, and standards. As these rules norms and customs vary over the period, marriage also grows and develops. It has changed its meaning over the period, as the community has become more accepting and understanding. In earlier inter-religion, inter-caste marriages were not permitted, polygamous marriages were permitted. Grounds for divorce and laws for divorce have also turned over time. The gender characters in a marriage have evolved. Yet some portions of the institution of marriage have endured nearly fixed for centuries. [4]

There are two fundamental suggestions for marriage. One is that two individuals who adore each other and desire to live unitedly in a long-lasting, steady relationship which is economically effective. On the other hand, it is debated that marriage is principally created to govern procreative behaviour because the private grounds of men and women at different points in their life cycles are often inconsistent with the social goals of the marriage.[5] Therefore, people against same-sex marriages debate that as marriage as an institution was founded only for reproduction and child-rearing, so in same-sex marriages, partners are incompetent of generation, therefore there cannot be a valid marriage among them. An indictment against this discussion is that barren couples, aged heterosexual couples, people who do not want kids in marriage as an individual choice are nevertheless permitted to marry. These cases, though, do not modify the ex-ante assumption that marriage will be procreative, which needs legitimate sex to take place in the marriage. That ex-post a couple continues childless does not question the assumption and purpose of the institution.[6]
Another debate against same-sex marriages is that more and more people will convert homosexuals. Most people don’t require their children to grow homosexuals, and according to Posner, this objection is a portion of the benefit calculation.[7] Nevertheless, they are confused in believing that homosexuality is chosen; there is compelling proof that sexual orientation is an intrinsic rather than earned distinction. Hence, this debate is false as it is based on a misjudged perception of sexual orientation.

Legal Structure

If the government legalizes same-sex marriages there will be three types of marriages that will be administered by the law, Heterosexual, Gay and Lesbian marriages. These three relations are radically different, thus there is a requirement for a separate legal structure to control homosexual relations.
The laws governing heterosexual relations are based on this assumption that the main purpose of marriage is reproduction and child-rearing. Thus, laws are drafted in such a way that they manage opportunistic behaviour and support dispute between private and social reasons. These laws are also heavily based on the biology of reproduction and gender performances conducted by the partners in a marriage, as a dispute within the private and social purposes this theory suggests that the optimal marriage laws have been exceptionally consistent over time and cultures because these problems remain nearly consistent across heterosexual couples.[8]
Nevertheless, when it comes to homosexual relationships, both the partners deliver the same gender roles, and a biological variation in terms of generation is also not there. In supplement to that, the specialization can also happen, when both partners are alike but have different establishing circumstances. [9]

The basic distinction between these three kinds of connections is the biological relationship between parents and children. In any heterosexual marriage, the child is biologically connected to her parents, whereas this connection is broken in same-sex marriages. This variation provides a diverse set of incentive difficulties among heterosexual and same-sex marriages.[10] It is extremely limited in heterosexual marriages, that this section is breached, whereas it everywhere in same-sex marriages. It is not clear that contemporary structures—such as selection and generative technology—that are enough for heterosexual marriage will be adequate for same-sex marriages.[11] Furthermore, the laws governing this area such as custodial preferences, visiting rights, the sequence of property, etc., should be such that both the partners are incentivized to spend in childcare.
According to Gary Becker, “the consequences on children elevated by gay couples will ordinarily be quite negative, in part because fathers and mothers have different but significant parts, in part because their family arrangements will vary so considerably from that of their classmates and other peers.”[12]

Also, in India, private matters like Marriage personal laws that are greatly affected by religious traditions and customs, it will be tough to manage such marriages. However, this should not be the basis to deny same-sex relationships in the state of marriages. The Netherlands—the first nation to award similar marriage rights to same-sex couples (2001)—is religiously distinct and so is Canada, which gave the rights in 2005. [13]


From the above analysis, it can be inferred that there is a need for laws to control same-sex relationships and these relationships should be granted the status of marriages. Heterosexual couples will get an extent to misuse the loopholes, and partners will attempt to improve themselves on the price of other family members. This will worsen the state of marriage as an organization and lesser people would want to get married, which will direct to advance obstacles in society. [14]
Homosexual Couples can define asset allocation, requirements for divorce, custodial rights, revisiting rights, estate, maintenance, and any other features of their relationship they want to control. Couples can add conditions associated to their religious practices or practices they would want to witness after getting married. And for those who do not want to allocate a contract, the government can perform a default, contract which has very basic, fundamental, and extensive provisions. [15] Conceivably, it is the law of nature to replace, to evolve, and not simply procreate and rear children.


[1] Christina Muller, An Economic Analysis of Same-Sex Marriage, Universität Hamburg Institutefur Recht und Ökonomik,
Douglas W. Allen, An Economic Assessment of same-sex marriages, Harvard Journal of Law and Public Policy, Vol. 29, No.3, 949.

[2] Supra note 1 at 3.

[3] Supra note 3 at 950.

[4] Id. at 957.

[5] Id. at 958.

[6] See the Law and Economics of Gay Marriages- Posner, The Becker Posner Blog, (Jul 17, 2005),

[7] Supra note 7.

[8] Supra note 1 at 9.

[9] Supra note 2 at 960.

[10] Id.

[11] See on Gay Marriage-Becker, The Becker-Posner Blog, (Jul 17, 2005),

[13] Same-Sex Marriage, Encyclopedia Britannica, (Sep. 27, 2018)

[14] Supra note 2 at 964.

[15] See the Law and Economics of Gay Marriages- Posner, The Becker Posner Blog, (Jul 17,2005)

About the Author

Nishtha Kheria

Nishtha Kheria

Nishtha Kheria is a 4th Year BBA LLB student studying at Amity Law School Amity University, Noida who has a keen interest in writing and reading blogs and articles.
Her articles and research papers have been published in various Journals. The person should be hardworking and should have the courage to achieve their goals in life.

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