Way to legalise Same-Sex Marriage

In News 

A Supreme Court Bench issued notices to the Centre and the Attorney General of India, seeking their response to two petitions filed by gay couples to allow solemnisation of same-sex marriage under the Special Marriage Act, (SMA) 1954.

Arguments of Petitioners 

• The SMA provides a civil form of marriage for couples who cannot marry under their personal law. 
  • Both the recent pleas seek to recognize same-sex marriage in relation to this Act and not personal laws.
• The petition argued that the SMA was “ultra vires” the Constitution “to the extent it discriminates between same-sex couples and opposite-sex couples”.
•  It stated that the Act denied same-sex couples “legal rights as well as the social recognition and status” that came from marriage.
• The petitioners emphasised that the SMA “ought to apply to a marriage between any two persons, regardless of their gender identity and sexual orientation”.
• The other petition argued that the recognition of same-sex marriage was only a “sequel” or a continuation of the Navtej Singh Johar judgment of 2018 (decriminalising homosexuality) and the Puttaswamy judgment of 2017 (affirming the Right to Privacy as a fundamental right). 
• The plea pointed out that while Section 4 of the SMA permitted the solemnisation of marriage between any two persons, a subsequent section placed restrictions. It said: 
  • “The use, in Section 4(c) of the words ‘male’ and ‘female’, as well as the use of gendered language such as the terms ‘husband/wife’ and ‘bride/bridegroom’ in other sections of the Act, limit the access to marriage to a couple comprising one ‘male’ and one ‘female’.”
• The prohibition of marriage of LGBT people on the basis of sexual orientation and gender identity is an absolute discrimination towards them and is also violative of Right to Equality as granted by the Constitution of India,”

The Government’s stand

• the Centre has opposed same-sex marriage, and said judicial interference will cause “complete havoc with the delicate balance of personal laws”.
• In 2021, while responding to the pleas seeking recognition of same-sex marriages in the Delhi High Court, Solicitor General Tushar Mehta for the Centre had said that as per the law, marriage was permissible between a “biological man” and “biological woman”. 
  • The acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws”.

Court’s Observations

• In the landmark Navtej Johar judgment of 2018, the five-judge Supreme Court Bench, which CJI Chandrachud was also a part of, had decriminalised homosexuality and unanimously held that the criminalisation of private consensual sexual conduct between adults of the same sex under the more than 150-year-old Section 377 of the Indian Penal Code was unconstitutional. 
  • It observed that Discrimination on the basis of sexual orientation is a violation of freedom of speech and expression”. 
  • Homosexuals had the right to live with dignity and were “entitled to the protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them.” 
  • A person’s bodily autonomy is constitutionally protected and that sharing intimacy in private with a person of choice formed a part of the individual’s right to privacy.
• In the NALSA vs Union of India judgment (2014), the Court had said that non-binary individuals were protected under the Constitution and fundamental rights such as equality, non-discrimination, life, freedom, and so on could not be restricted to those who were biologically male or female.

What about other countries?

• 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

Conclusions and Way Forward 

• Enforcing something like same-sex marriage in a diverse country with varying customs and traditions will not be easy. 
• Social mindsets are conservative and so well-entrenched that anyone who feels differently is stigmatised, humiliated and ostracised. 
• Together with the Court, more needs to be done at the societal level to chip away at conservative views on sex, gender, women and the LGBTQIA+ community.
• As people’s relationships change, and society undergoes transformation, constitutional rights on freedoms and liberties can be extended to every sphere.