Same-Sex Marriage
Context:
- In response to a petition filed by two gay couples seeking recognition of same-sex marriage under the Special Marriage Act of 1954, the Supreme Court has sent notice to the Indian government and attorney general.
- A two-judge panel working under Chief Justice of India D Y Chandrachud issued the notice in response to numerous petitions.
- Same-sex marriage is not recognised, which is discriminatory and jeopardises LGBTQ+ couples’ value and capacity to realise their full potential.
- What justifications do the petitioners offer?
- Insofar as it discriminates against same-sex couples and opposite-sex couples, the Act is unlawful because it denies same-sex couples their legal rights as well as the respect and status that come with marriage.
- No of the sexual orientation or gender identity of the partner, the Special Marriage Act of 1954 should apply to all marriages.
- The fundamental rights to equality and a life of dignity should be viewed as being violated by the Act because it “does not provide for the solemnization of marriage between same sex couple.”
- Same-sex partnerships should be protected to the same extent as inter-caste and inter-religious marriages under the Act.
- Simply decriminalising homosexuality has not gotten us far enough; LGBTQ+ people need equality in all aspects of life, including the job, the home, and public spaces.
- At the moment, 7–8% of Americans identify as LGBTQ+.
What kind of same-sex relationships are legal in India?
- The Indian Constitution does not formally recognise the right to marriage as a basic or constitutional right.
- Marriage is governed by a number of statutes, but it wasn’t until the Supreme Court of India rendered rulings that it was recognised as a basic right. Article 141 of the Indian Constitution mandates that this judicial declaration be made by all courts.
What positions on same-sex relationships does the Supreme Court hold?
- The Fundamental Right to Marriage in Asokan K.M. v. Shafin Jahan & Others (2018)
- The freedom to marry the partner of one’s choice is a fundamental component of Article 21 of the Constitution, the Supreme Court ruled in Puttaswamy v. India and Article 16 of the Universal Declaration of Human Rights.
- If discrimination is primarily based on a person’s race, caste, sex, ancestry, place of birth, or domicile, it is illegal according to Article 16(2) of the Indian Constitution.
- The freedom that the Constitution preserves as a fundamental right—each person’s freedom to make decisions that are important to their pursuit of happiness—is inextricably linked to the right to marry. The constitution guarantees the freedom of religion and belief, including the choice to believe.
- LGBTQ individuals “are entitled, as all other citizens, to the full spectrum of constitutional rights, including the liberties protected by the Constitution,” as well as “equal citizenship and equal protection of the law,” according to Navjet Singh Johar and Others v. Union of India (2018).
What precisely does the 1954 Special Marriage Act (SMA) cover?
- Marriages that adhere to the relevant personal laws may be registered in India. The Special Marriage Act of 1954, the Muslim Marriage Act of 1954, or the Hindu Marriage Act of 1955 all fall under this category.
- The legal system must make sure that both the wife’s and the husband’s rights are upheld.
- Regardless of the faith or belief practised by either partner, civil marriage is permitted for Indian citizens and all Indian nationals overseas under the Special Marriage Act, 1954, an act of the Indian Parliament.
- The Special Marriage Act, not any personal laws, governs marriages that are solemnised in accordance with this law.
- Features: permits the union of individuals with various religious backgrounds through marriage.
- describes the procedures for marriages that are pronounced legal and recorded, as well as for unions in which one or both partners do not identify as Hindu, Buddhist, Jains, or Sikh.
- Because it is a secular Act, it is crucial to liberate individuals from the constraints of traditional marriage.
Way Forward
- The LGBT community needs an anti-discrimination law that offers them the freedom to forge fulfilling relationships and prosperous lives regardless of their gender identity or sexual orientation and shifts the onus of change from the person to the state and society.
- More than a dozen nations have legalised same-sex unions, and it is obvious that when LGBTQ persons “are entitled to the full spectrum of constitutional rights,” same-sex couples getting married must be permitted the fundamental freedom to marry whoever they choose.
