Same-Sex Marriage in India

What’s in today’s article?

• Why in news?
• News Summary: India’s stand on same-sex marriage
• What is the case?
• Why does the community want this right?
• What is the Centre’s stand?
• What are the arguments forwarded by the Government?
• Way ahead

Why in news?

• Recently, a Bench led by Chief Justice of India D.Y. Chandrachud referred petitions to legally recognise same-sex marriages to a Constitution Bench of five judges of the Supreme Court.

News Summary: India’s stand on same-sex marriage

What is the case?

• The Court has been hearing multiple petitioners’ requests for legal recognition of same-sex marriages under a special law.
• SC took up the case as petitioners claimed that the non-recognition of same-sex marriage amounted to discrimination that strikes at the root of dignity and self-fulfilment of LGBTQIA+ couples.
• The petitioners cited the Special Marriage Act, 1954 and appealed to the Court to extend the right to the LGBTQIA+ community, by making the marriage between any two persons gender neutral.
  • Special Marriage Act, 1954 provides a civil marriage for couples who cannot marry under their personal law.

Why does the community want this right?

• Even if LGBTQIA+ couples may live together, legally, they are on a slippery slope. 
  • In Navtej Singh Johar case (2018) homosexuality was decriminalised.
• They do not enjoy the rights married couples do. 
  • For example, LGBTQIA+ couples cannot adopt children or have a child by surrogacy; 
  • they do not have automatic rights to inheritance, maintenance and tax benefits; 
  • after a partner passes away, they cannot avail of benefits like pension or compensation.
• Most of all, since marriage is a social institution – that is created by and highly regulated by law – without this social sanction, same-sex couples struggle to make a life together.

What is the Centre’s stand?

• At depositions in courts and outside, the Centre has opposed same-sex marriage.
• It said that the judicial interference will cause complete havoc with the delicate balance of personal laws.
• While filing a counter-affidavit during this hearing, the government said that decriminalisation of Section 377 IPC does not give rise to a claim to seek recognition for same-sex marriage.

What are the arguments forwarded by the Government?

• Notion of marriage
  • The notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex.
  • This definition is socially, culturally and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation.
• Marriage laws governed by the personal laws/codified laws
  • Parliament has designed and framed the marriage laws in the country to recognise only the union of a man and a woman to be capable of legal sanction, and thereby claim legal and statutory rights and consequences.
    • Marriage laws in India are mostly governed by the personal laws/codified laws relatable to customs of various religious communities.
  • Any interference with the same would cause a complete havoc with the delicate balance of personal laws and in accepted societal values.
• Reasonable restriction
  • Even if such a right is claimed under Article 21, the right can be curtailed by competent legislature on permissible constitutional grounds including legitimate state interest.

Way ahead

• The government saying that the concept of marriage ought not to be disturbed or diluted by judicial interpretation.
• On the other hand, the Court is leaning towards granting equal rights, including marriage of same-sex couples, citing the Constitution and changing norms.
• Even if the Court rules in its favour, the march towards equality for the LGBTQIA+ community will be hard. 
• Enforcing something like same-sex marriage in a diverse country with well-entrenched traditions will not be easy. 
• Rights activists are calling for awareness on sex, gender and constitutional rights from the school level to change things on the ground.

Q1) What is Special Marriage Act 1954?

The Special Marriage Act 1954 is an Indian law that provides for marriage registration and solemnization of marriages between individuals belonging to different religions, castes, or states. The act was enacted to provide a special form of marriage that can be registered, without the religious or customary restrictions that often apply to traditional marriages in India.

Q2) What was Section 377 of IPC?

Now declared unconstitutional by the Supreme Court, Section 377 of the Indian Penal Code (IPC) was a law that criminalized “unnatural” sexual acts, regardless of whether they were consensual or not.The law was introduced in 1861 during British colonial rule in India and remained in effect until 2018.

Source: Explained | What is India’s stand on same-sex marriage?