What Is India’s Stand On Same-Sex Marriage
Context:
- A Supreme Court (SC) Bench led by Chief Justice of India (CJI) D.Y. Chandrachud has referred petitions to formally recognise same-sex weddings to a Constitution Bench of five Supreme Court (SC) judges.
Background of the case:
- Several petitioners are pleading with the Court to uphold the same-sex unions under the special law. Beginning with the condition of two partners, it discussed how the rejection of same-sex marriage constituted discrimination and threatened the “dignity and self-fulfillment” of LGBTQIA+ relationships.
- The petitioners asked the court to change “marriage between any two persons” to be gender neutral in order to extend this privilege to the LGBTQIA+ population. They emphasised the Special Marriage Act of 1954, which enables those who are unable to marry under their personal law to do so in a civil ceremony.
Special marriage act:
- A 1954 law from India known as the SMA, 1954, provides a legal foundation for interfaith or intercaste unions. When the state approves the union rather than a religious organisation, it governs a civil union.
- The Act mandates that weddings be registered in order to provide the union legal recognition and to grant the couple a range of legal benefits and protections, including as social security benefits, rights to succession, and inheritance rights.
- Polygamy is outlawed, and if each partner had a spouse who was still alive at the time of the union or if any of them were mentally unable to consent to the union, the marriage was deemed unlawful and void.
- The parties must notify the district’s marriage officer in writing and at least one of them must have lived in the area for at least 30 days prior to the notification date, as required by Section 5 of the Act. According to Section 7 of the Act, any person may object to the marriage before the 30-day window from the date the notification was published.
- Depending on the state, personal laws like the Muslim Marriage Act of 1954 and the Hindu Marriage Act of 1955 may compel one or both of the couple to convert to the other’s religion before getting hitched. Nonetheless, the SMA does not require interfaith or intercaste couples to convert or forsake their religion in order to get married. Nonetheless, the SMA states that once married, a person is legally divorced from the family in terms of rights, including the right to inherit.
- While being able to cohabitate, LGBTQIA+ couples do not have the same legal rights as married couples:
- Couples who identify as LGBTQIA+ are not allowed to adopt or use surrogacy to have children.
- They do not immediately qualify for tax breaks, assistance, or inheritance.
- Whenever a partner passes away, they are not eligible for benefits like pensions or compensation.
Court’s perspective:
- Using Article 21 of the Constitution, which guarantees the right to life and liberty, the courts have repeatedly ruled in favour of interfaith and intercaste marriages, declaring that “all adults have the right to marry a person of their choice” and ordering the police and other rights organisations to provide protection when threatened by parents or society.
- “Members of the LGBT[QIA+] community are entitled to the advantage of an equal citizenship, without discrimination, and to the equal protection of the law,” the court said in the Navtej Singh Johar case (2018), which led to the decriminalisation of homosexuality.
- Following the K.S. Puttaswamy decision/Aadhar case (2017), which upheld the right to privacy, and Navtej Singh Johar (2018), which decriminalised homosexuality, there was hope that same-sex weddings would become legal. But, since this has not occurred, many couples have filed lawsuits.
The central government’s position is:
- The Centre has opposed same-sex marriage and warned that judicial intervention will “wreak havoc with the delicate balance of personal legislation” in depositions both inside and outside the courts.
- The government argued that the idea of marriage “necessarily and unavoidably involves a relationship between two persons of the opposite sex” in a document presented to the Supreme Court. As this concept is firmly rooted in marriage’s social, cultural, and legal underpinnings, it should not be altered or modified by judicial interpretation.
- Despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners, it was said, were still unable to demand that same-sex marriage be recognised as a fundamental right and recognised by the nation’s legal system.
- According to the government, even though a same-sex marriage is permitted by Article 21 it “may be regulated by competent legislation on valid constitutional grounds including legitimate state interest.”
Moving ahead:
- It will be necessary for the government and supreme court to reach a compromise that protects individual liberty without disrupting Indian society’s “traditional societal ideals,” or “sanskar.
- The court may also apply the idea of constitutional morality in this case, which preserves the core principles of constitutional democracy. Constitutional morality goes beyond merely following the text of the law; it is also founded on ideas like respecting one’s privacy, promoting equality without prejudice, and recognising one’s individuality with dignity.
Conclusion:
- Anything like same-sex marriage will be challenging to impose in a diverse society with entrenched traditions. In order to bring about change locally, rights campaigners are encouraging education about sex, gender, and constitutional rights to start in schools.
