Inaction and intervention: On the issue of same-sex marriage

In Context

• Legislative inaction on burning social issues like that of ‘same-sex marriage’ will legitimise and invite judicial intervention.

About Same-Sex Marriage

• Meaning:
  • 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.
• Global position:
  • A total of 32 countries around the world have legalised same-sex marriages, some through legislation while others through judicial pronouncements. 
  • Many countries first recognised same-sex civil unions as the escalatory step to recognise homosexual marriage.
  • The Netherlands was the first country in 2001 to legalise same-sex marriage by amending one line in its civil marriage law. 
  • Most countries in North and South America and Europe have legalised same-sex marriage
• Legal position on the issue of same-sex marriage in India:

• India does not recognise registered marriage or civil unions for same-sex couples.
  • Though same-sex couples can attain equal rights and benefits as a live-in couple (analogous to cohabitation) as per a Supreme Court of India judgement in August 2022.

India’a apex Court’s position

• The petitions:
  • Petitioners before the Court view the idea of giving legal status for marriages between people belonging to the same sex as a natural consequence of the 2018 judgment decriminalising homosexuality.
    • Navtej Singh Johar & Ors. v. Union of India, Ministry of Law and Justice (2018) is a landmark decision of the Supreme Court of India that decriminalised all consensual sex among adults, including homosexual sex.
  • The petitioners have cited that the right to marry cannot be withheld from a section of people based solely on their sexual orientation. 
  • The batch of petitions challenges the provisions of the Hindu Marriage Act, Foreign Marriage Act and Special Marriage Act to the extent they do not recognize same-sex marriages.
• Supreme Court’s opinion:
  • The question before the Court is whether it should interpret provisions of marriage laws in India, especially the Special Marriage Act, 1954, as permitting marital unions between same-sex couples. 
    • The Special Marriage Act, of 1954 allows the solemnisation of a marriage between any two persons and is used by those who are unable to register their marriages under their respective personal laws.
  • Constitution bench of five judges:
    • The Supreme Court noted that legalising same-sex marriage in India is a ‘seminal Issue’ and noted that a constitution bench of five judges would further make a decision on the plea.

Centre’s position

• Centre has opposed in the Supreme Court a batch of pleas seeking legal validation of same-sex marriage, saying it would cause complete havoc with the delicate balance of personal laws and accepted societal values.
•  If there ought to be such a change, it must come from the legislature.
  • The state is entitled to limit its recognition to marriages involving heterosexual couples.

Arguments in favour of legalising Same-Sex Marriage

• Fundamental Right: 
  • Right to marry a person of one’s choice is a fundamental right guaranteed under 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 the 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

• Against Biological relation:
  • Marriage in India can be recognised only if it is between a biological man and a biological woman capable of producing children.
• Judicial interference:
  • The government has said that any interference by a court in the marital statute based on personal laws will create havoc in society and will run against the intent of Parliament in framing the laws.
• Fundamental rights are not absolute:
  • Fundamental rights cannot be an untrammelled right and cannot override other constitutional principles.
• Absence of civil rights issues: 
  • The 2018 judgment of the Supreme Court decriminalised homosexuality but did not get into civil rights issues. 
  • As a consequence, same-sex relationships are legal but civil rights such as marriage, inheritance or adoption, are not guaranteed to the lesbian, gay, bisexual, transgender, queer and intersex community.
• Lack of legal framework:
  • The legal framework governing the institution of marriage in this country does not presently allow members of the LGBTQ+ community to marry the person of their choice.
  • Couples cannot protect the family, and matters like adoption, opening a joint bank account or admission of children remain uncertain on account of the failure of the law to recognise same-sex unions.

Way ahead

• Not an easy path:
  • Enforcing same-sex marriage in a diverse country with varying customs and traditions will not be easy. 
• Not enough arguments to deny equal status:
  • The mere fact that many people consider marriage to be a sacrament or a holy union is not enough to deny equal status to the union of people of the same sex or to undermine its essential character as a social and economic contract. 
  • 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.
• Inaction and intervention:
  • Whether the remedy ought to take the form of recognition of same-sex marriages, and, if so, whether it should be through judicial intervention or legislative action, is the question. 
    • Legislative inaction on burning social issues will legitimise and invite judicial intervention.