In Context
- The Union government expressed its disagreement towards same-sex marriage pointing out that it would cause complete havoc with the delicate balance of personal laws and accepted societal values.
- According to the government, marriage between a biological man and woman is a “holy union, a sacrament and a sanskar” in India.
What is Same-Sex Marriage?
- It is the practice of marriage between two men or between two women.
- Same-sex marriage has been regulated through law, religion, and custom in most countries of the world.
- As of 2023, marriage between same-sex couples is legally performed and recognized in 34 countries, constituting some 1.35 billion people (17% of the world’s population), with the most recent being Andorra.
Petitioner’s Arguments
- Petitioners argued that the non-recognition of same-sex marriage amounted to discrimination that struck at the root of the dignity and self-fulfillment of LBTQ+ couples.
- It demanded that the Special Marriage Act, 1954 should grant same-sex couples the same protection it allowed inter-caste and inter-faith couples who want to marry.
Governments’ Arguments
- According to the center, despite statutory recognition of the relationship of marriage between a biological man and a biological woman, marriage necessarily depends upon age-old customs, rituals, practices, cultural ethos and societal values.
- Registration of marriage of same-sex persons would also result in violation of existing personal as well as codified law provisions.
- Any “deviation” from the “statutorily, religiously and socially” accepted norm in “human relationship” can only happen through the legislature and not the Supreme Court.
- The government argued that the Court had only decriminalised sexual intercourse between same-sex persons in its 2018 judgment in Navtej Singh Johar, and not legitimised this “conduct”.
- Same-sex marriage cannot be compared to a man and women living as a family with children born out of the union.
Same sex marriage legality
- There is no explicit mention of homosexuality or homophilic in any of the statute books of India.
- A person cannot be prosecuted for being a homosexual or homophilic.
- The sexual act of sodomy is a criminal offense.
- The major provisions of criminalisation of same-sex acts are found in Section 377 of the Indian Penal Code (IPC) of 1860.
- The 2018 Navtej Singh Johar judgment decriminalised homosexuality, but it did not mention/legitimise same-sex marriage.
- The court, while decriminalising homosexuality, had never accepted same-sex marriage as part of the fundamental right to life and dignity under Article 21 of the Constitution.
- Registration of marriage of same-sex persons would also result in violation of existing personal as well as codified law provisions.
Arguments in favour of legalising Same-Sex Marriage
- The Special Marriage Act of 1954:
- It provides a civil form of marriage for couples who cannot marry under their personal law.
- Fundamental Right:
- Right to marry a person of one’s choice is a fundamental right guaranteed under the Article 21 of the Constitution of India.
- Members of the LGBTQ+ community have the same human, fundamental and constitutional rights as other citizens.
- Right to equality:
- The petitioners have argued that barring them from marriage violates their right to equality.
- Global practice:
- According to global think tank Council of Foreign Relations, same sex marriages are legal in at least 30 countries, including the United States, Australia, Canada and France.
Arguments against Same Sex Marriage
- Social Stigma: Apart from the harsh legal scenario, homosexuals face social stigma.
- Any instance of sexual relations between a couple of the same sex draws hatred and disgust.
- Intimacy of any sort is not approved of unless it is legitimized in the form of marriage where socially approved sexual access takes place.
- Rising activism: Campaigns for lesbian and gay rights taken on an increasingly radical character, arguing for an end to all forms of discrimination against homosexuality.
- Progeny Issues: Gay and lesbian couples are also not allowed to have children born with the help of an Indian surrogate mother.
- An LGBTQ+ person can apply to the Central Adoption Review Authority for adoption only as a single parent.
- Patriarchal Society: Indian society is patriarchal which believes that hetrosexual marriage was the norm throughout history and are “foundational to both the existence and continuance of the state.
Way Ahead
- Awareness campaigns are a must to sensitise society about the rights of all individuals.
- As people’s relationships change, and society undergoes transformation, constitutional rights on freedoms and liberties must extend to every sphere, including a same-sex couple’s life.
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Special Marriage Act of 1954
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Source:TH
