Same Sex Marriage in India: Reputed senior advocates well-versed with rules regulating adjudication of review petitions took CJI D Y Chandrachud by surprise with their ‘cart-before-the horse’ requests for an open court hearing of petitions seeking reconsideration of the Supreme Court’s Oct 17, 2023, judgment unanimously denying legalisation of same-sex marriages.
Why is Same Sex Marriage in the News?
- The Supreme Court hearing on petitions seeking review of its October 17, 2023 judgment, refusing to grant legal recognition for same sex marriage, could not take place Wednesday (10 July 2024) as one of the judges on the five-judge constitution bench recused himself from the hearing.
- Justice Sanjiv Khanna, the second senior most SC judge who was on the reconstituted bench, is learnt to have cited personal reasons to recuse.
- The October 2023 ruling was delivered by a bench headed by CJI D Y Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha.
Previous (Oct 17, 2023) Observation of the Supreme Court (SC):
- Against Constitutional Validity:
- A five-judge Constitution Bench of the Supreme Court, led by the Chief Justice of India, delivered a 3:2 verdict rejecting the constitutional validity of same-sex marriages.
- Domain of Parliament:
- The Chief Justice, in his opinion, stated that the court cannot either invalidate or amend the Special Marriage Act (SMA) 1954 to include same-sex couples. The Supreme Court emphasized that it is the responsibility of Parliament and state legislatures to create laws on this issue.
- Other Observations:
- Simultaneously, the SC noted that the concept of marriage is not static. It affirmed that queer individuals have an equal right and freedom to enter into a “union.” Despite this, all five judges on the Bench agreed that there is no fundamental right to marry under the Constitution.
Special Marriage Act (SMA), 1954
- Background:
- Marriages in India can be registered under specific personal laws such as the Hindu Marriage Act of 1955, the Muslim Marriage Act of 1954, or the Special Marriage Act of 1954. The judiciary is responsible for ensuring the protection of both the husband’s and wife’s rights.
- About:
- The Special Marriage Act of 1954 is an Indian parliamentary act that provides for civil marriage for Indian citizens, regardless of their religion or faith, both within India and abroad.
- This act enables individuals from different religious backgrounds to legally marry. It outlines the procedures for solemnization and registration of marriages.
- Key Provisions:
- Prior Notice to the Marriage Officer:
- Couples must submit a notice with the required documents to the Marriage Officer 30 days before their intended marriage date.
- Registration Process:
- After submitting the documents, both parties must be present for the issuance of a public notice inviting objections. Registration occurs 30 days after the notice date, following the resolution of any objections by the Sub-Divisional Magistrate (SDM). On the registration date, both parties and three witnesses must be present.
Here are the arguments made in favour of legalizing same-sex marriage in India:
- Equality for Homosexuals: Legalizing same-sex marriage promotes equality and non-discrimination, in line with Articles 14 and 15 of the Constitution, which prohibit discrimination based on sex. The Supreme Court in the Navtej Singh Johar case (2018) interpreted “sex” to include “sexual orientation,” meaning denying marriage rights to same-sex couples is discriminatory.
- Right to Privacy: The Supreme Court’s K.S. Puttaswamy case (2017) affirmed the right to privacy as a fundamental right under Article 21. This includes the right to make personal decisions about one’s body and intimate relationships. Legalizing same-sex marriage would protect the privacy rights of homosexual couples.
- Legal Protection: Legalizing same-sex marriage would extend legal protections to homosexual couples, covering areas such as wages, gratuities, adoption, surrogacy, inheritance, joint property ownership, and healthcare.
- Human Rights: Same-sex marriage is recognized as a human rights issue. The United Nations has called for the protection of LGBT rights, including the right to marry, recognizing it as essential for the protection of human rights.
- Significance to Homosexual Relationships: Legalizing same-sex marriage would provide same-sex relationships with a sense of significance, direction, and identity.
- Social Acceptance: Legalizing same-sex marriage would promote social acceptance of LGBT individuals and relationships, helping to reduce social discrimination and stigma.
- Transformative Constitutionalism and Progressive Realisation of Rights: Legalizing same-sex marriage would advance the principles of transformative constitutionalism and the progressive realization of minority rights. The Supreme Court invoked these principles in the Navtej Singh Johar case (2018), which decriminalized Section 377 of the IPC.
- Precedent of Judicial Interpretation: Granting marriage equality does not require an unprecedented move from the Supreme Court. The basic structure doctrine and the right to privacy verdict involved extensive constitutional interpretation, and same-sex marriage legalization can fit within this framework.
- Homosexuality Beyond Urban Areas: Proponents argue that homosexuality is not limited to urban areas; many homosexuals live in rural areas and towns. It is estimated that homosexuals constitute about 7-8% of India’s population.
- Evolving Institution of Marriage: Marriage is an evolving institution that reflects contemporary social values. Historical examples like Gandharva marriages (based on mutual consent), Daiva marriages (marrying a teacher), and Arsha marriages (marrying rishis) show how marriage has adapted over time. Modern times call for the recognition of same-sex marriage.
- Global Acceptance: Same-sex marriage is legal in 34 countries worldwide. Denying this right in a democratic society contradicts global principles.
- Right to Marry as a Human Right: According to the UDHR, 1948, the right to marry is a human right. Article 16 states that “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.”
- Logical Next Step After Decriminalisation: Following the decriminalization of Section 377, it is logical to extend marriage rights to same-sex couples, allowing those in physical relationships to progress to long-term commitments, including marriage.
Arguments against the legalization of same-sex marriage in India
- The central government and various advocates presented several arguments against the legalization of same-sex marriage in India, which include:
- Religious and Cultural Beliefs: In India, aspects of marriage, succession, and adoption are governed by religious personal laws, which are designed for heterosexual couples. Legalizing same-sex marriage is seen as contrary to Indian religious and cultural beliefs.
- Legal Complications: Legalizing same-sex marriages could introduce complexities in adoption, child custody, inheritance, and tax issues.
- Children’s Rights: Opponents argue that children fare better with heterosexual parents. Given the lack of universal acceptance of the LGBTQIA+ community in Indian society, this could lead to societal stigma, discrimination, and mental health issues for children adopted by LGBTQIA+ couples.
- Public Policy and Parliamentary Decision: Marriage is considered a matter of public policy that should be decided by Parliament and the executive. Legalizing same-sex marriage would necessitate changes in laws regarding the age of consent, bigamy, and judicial divorce.
- Potential Social Unrest: Same-sex marriage is not widely accepted in Indian society. Legalization could disrupt social norms and values, potentially leading to social unrest.
- Urban-Elitist Demand: The push for same-sex marriage is perceived as an urban-elitist demand, not reflecting the needs or desires of rural and semi-urban areas.
- Against the Natural Order: Some argue that the primary purpose of marriage is procreation, and since same-sex couples cannot have biological children, same-sex marriage should not be permitted as it goes against the natural order.
The historical progress regarding LGBTQI rights recognition in India
- Section 377 of the Indian Penal Code criminalized sexual activities between non-heterosexual couples, with a punishment of up to 10 years in prison. In 2009, the Delhi High Court ruled Section 377 unconstitutional in the Naz Foundation case. However, this decision was overturned by the Supreme Court in the Suresh Kumar Koushal case in 2013. Ultimately, Section 377 was upheld as unconstitutional by the Supreme Court in the Navtej Singh Johar case in 2018.
- In the NALSA judgment of 2014, the Court affirmed that individuals have the right to self-identify their gender. This ruling recognized that people assigned male at birth could identify as female or transgender if they chose to do so.
- Furthermore, the Transgender Persons (Protection of Rights) Act was enacted by Parliament in 2019. This Act outlines the procedure for gender change and provides protection against discrimination in various sectors, whether private or state-run.
Global Status of Same-Sex Marriage
- Countries Where Same-Sex Marriage is Legal:
- North America: Canada: One of the first to legalize same-sex marriage in 2005.
- United States: Legalized same-sex marriage in 2015 after the Supreme Court ruling in Obergefell v. Hodges.
- South America: Argentina, Brazil, Colombia, Uruguay, and Ecuador have all legalized same-sex marriage.
- Europe: Numerous countries have legalized same-sex marriage, including the Netherlands (the first in the world in 2001), Belgium, Spain, Norway, Sweden, Iceland, Portugal, France, the United Kingdom (excluding Northern Ireland), Ireland, Germany, and others.
- Oceania: Both New Zealand and Australia have legalized same-sex marriage.
- Africa: South Africa is the sole African nation where same-sex marriage is legal.
- Asia: Taiwan became the first Asian country to legalize same-sex marriage in 2019 following a Constitutional Court decision.
Explore our courses: https://apnipathshala.com/courses/
Explore Our test Series: https://tests.apnipathshala.com/
