Same-Sex Marriage
Context:
- The Supreme Court (SC) referred the question of legalising same-sex marriages to a Constitution Bench in Supriyo v. Union of India. The affidavit the Central government presented in this case is opposed to such legalisation, in contrast to the Section 377 decriminalisation issue, which the Central government had deferred to the Court’s ruling on. Campaigners, professors, and other civil society participants have criticised the Center’s viewpoint. Let’s look into its line of reasoning.
The growth of the law through Supreme Court decisions and conflicting evidence:
- The Supreme Court (SC) decriminalised homosexuality in the Navtej Singh Johar case from 2018, which involved sections of Section 377 of the Indian Penal Code (IPC) that were judged to infringe the basic rights of the LGBTQ community. This part of the legislation, which forbade homosexuality, was first introduced during the colonial era.
- The Delhi High Court (HC) ruled that Section 377 of the IPC is unconstitutional in the case of Naz Foundation v. NCT of Delhi (2009).
- In the Suresh Kumar Koushal Case, the Delhi High Court’s 2009 ruling that decriminalised gay acts and reinstated homosexuality as a felony was overturned by the Supreme Court in 2013.
- In Judge K.S. Puttaswamy v. Union of India (2017), the Supreme Court of India determined that the basic right to privacy is inextricably tied to life and liberty and is therefore protected by Article 21 of the Indian constitution. The court further concluded that a key element of the right to privacy is physical autonomy. The sexual orientation of an individual is part of their bodily autonomy.
Recent changes:
- It seems that the central government is currently challenging the court’s progressive judgements. The Center’s principal argument is that same-sex marriage is not recognised by Indian traditions, ethos, culture, or the societal understanding of marriage as an institution. Some people believe that marriage is a sacrament that joins a biological male and female in a holy union so that they can have children.
- As a result, it is argued that Parliament, and not the Court, should debate and decide whether same-sex marriages should be legalised.
Position in the government:
- It is crucial to understand the theoretical foundations of this claim since it is improbable that the Court will accept or reject the Centre’s position without carefully weighing its merits. Thus, four interconnected supporting points act as a foundation for the location of the Centre.
Social consensus:
- The debate over same-sex marriage has the potential to alter how society views the family, which is its cornerstone. A conventional definition of marriage is a socially approved union of individuals for the aim of procreation. Even if same-sex partnerships are not a danger to this principle, they do need a minor adjustment. First, it needs to be brought up in social settings.
Certain laws:
- The legal framework in place today supports marriage as it is generally understood. Marriages in India are governed by a complex legal structure with a strong religious component. They are consequently subject to personal laws like:
- Hindu Marriage Act of 1955
- Parsi Marriage and Divorce Act of 1936
- Christian Marriage and Divorce Act of 1957
- The personal code of Islam
- All marriage laws, with the exception of the Special Marriage Act (SMA) of 1954, recognise marriages between a man and a woman. The legislature passed SMA in order to promote interreligious marriages. Because of this, it cannot be inferred that the legislative intent underlying the use of gender-neutral language in Section 4 of the SMA is to support same-sex unions.
The purpose of reproduction:
- Contrary to the constitutional morality upheld in the Navtej Johar case, which recognises consummation for purposes other than procreation, religious and social morality continues to see intercourse as a procreative action. Due to different legal requirements, marriage must be legally consummated.
- This offers a reasoned response to the topic of whether an infertile couple’s marriage poses a threat to the idea of a valid marriage. The legal definition of marriage continues to include procreation as an essential requirement.
- You can conclude this from the aforementioned clauses, which indicate that impotence and absence of consummation render marriages null and void. So, the parties to the marriage would be referred to as “unmarried” rather than “divorcees.”
Relationships have a fluid nature:
- Conventional ideas of the family and marriage must deal with developing issues. The idea of live-in relationships is philosophically antagonistic to marriage, just like same-sex marriages are. Live-in relationships are acknowledged by the courts but are not the same as marriage from a legal standpoint. Social acceptance of such relationships is still up in the air.
- Hence, despite what could at first seem to be the case, the Center’s concerns about the conceptual alteration of the family unit are not really as homophobic as might initially seem to be the case. Instead, they are utilised in a broader societal framework. The legal recognition of same-sex couples needs to be discussed more in society and in the legislation, similar to the conversation around live-in relationships.
Conclusion:
- We do not believe that same-sex couples’ decisions to cohabitate should not be recognised legally. The issues at hand need immediate response because they are significant. Yet, given to the consequences of doing so, the initiative to formally recognise same-sex partnerships as a pair must come from representative bodies like Parliament.
