Same-sex Marriage in India: Centre’s View and SC Verdicts

What’s in today’s article?

• Why in News?
• What is the Case of the Same-sex marriage in India?
• What are the Arguments of Petitioners?
• What are the Views of the Centre?
• Views of other Statutory, Religious Bodies
• What are the SC Judgments on the Issue?

 

Why in News?

• A five-judge Supreme Court Bench, headed by the Chief Justice of India, is scheduled to hear a series of petitions seeking legal recognition of same sex marriage.

 

What is the Case of the Same-sex marriage in India?

• Several petitioners have asked the court to recognise the same-sex marriages under the Special Marriage Act (SMA) 1954.
  • The Act (Section 4) provides for the conditions relating to solemnization of special marriages between any two persons.
• The court had referred the pleas to a Constitution Bench, saying questions of seminal importance (an interplay of constitutional rights, specific legislative enactments and the rights of transgender couples).

 

What are the Arguments of Petitioners?

• Same-sex couples do not enjoy the rights of married couples even though the SC has repeatedly said that all adults have the right to marry a person of their choice.
  • These rights include the right to adopt or have children by surrogacy, automatic rights to inheritance, pension, maintenance and tax benefits, etc.
• They will not be able to avail of legally accrued benefits of laws such as -
  • The Transplantation of Human Organs Act, as it only allows near relatives to object to the use of a deceased’s body for therapeutic purposes or organ donation.
  • The Section 80 of the Income Tax Act 1961, which provides for deduction of certain sums for computing the total income of an assessee, when such sums are paid on behalf of a spouse.
• Marriage is a social status which is bestowed by law and through which society accepts, respects and validates a couple.
  • By excluding same-sex couples from the realm of marriage, the law places a burden on same-sex couples that it is constitutionally impermissible.
• Equality extends to all spheres of life, such as the home, workplace and public places, making the case for structural changes along with attitudinal ones.
• Non-recognition of same-sex marriage violates fundamental rights under -
  • Articles 14 (right to equality before law),
  • Article 15 (right against discrimination on grounds of religion, race, caste, sex, place of birth),
  • Article 19 (freedom of speech and expression), and
  • Article 21 (protection of life and personal liberty) of the Constitution.

 

What are the Views of the Centre?

• The Centre has opposed the petitions and questioned their maintainability.
• If the court allows same sex marriage, it would amount to the judicial creation of a social institution called ‘marriage’ of a different kind than contemplated in the existing law.
• Only the legislature has the right to make such changes in the law because the legislature is the repository of democratic representation and reflects the will of the people.
• Marriage is not confined to the private sphere. The regulation of marriage is very much an issue of acceptance by society. This rationale is the very basis for state recognition of marriage.

 

Views of other Statutory, Religious Bodies:

• Delhi Commission for Protection of Child Rights (DCPCR): Same sex couples would make equally good parents as heterosexual parents.
• National Commission for Protection of Child Rights (NCPCR): Argued that same sex marriage would violate the provisions of the Juvenile Justice Act 2015, which prohibits a single man (let alone two men) from adopting a girl child.
• Shri Sanatam Dharm Pratinidhi Sabha: It opined that the concept of same-sex marriages is “catastrophic” and would have a “pernicious effect” on Indian culture and society.

 

What are the SC Judgments on the Issue?

• An adult person has the right to marry a person of their choice under Article 21 [Lata Singh vs State of UP (2006), Shafin Jahan vs Asokan KM (2018), and Laxmibai Chandaragi B vs The State of Karnataka (2021)].
• LGBTQ persons rights are founded on sound constitutional doctrine - right to life, privacy, dignity, liberty and freedom [KS Puttaswamy vs Union of India (2017)].
• The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation [Navtej Singh Johar vs UOI (2018)].

 

---

Q1) Why was the Special Marriage Act 1954 enacted?

The purpose of the Special Marriage Act is to cater to inter-caste and inter-religion marriages, whereby the couple is not required to renounce his/her religion to get married. The registration can also happen with them maintaining their religious identity.

 

Q2) Why is Section 377 of IPC?

Section 377 criminalised all sexual acts "against the order of nature". It was read down by the Supreme Court of India in the Navtej Singh Johar case (2018) decriminalising homosexuality.

 

---

Source: Issues in same-sex marriage plea, coming before Supreme Court today | TH