Same-sex marriage: What is the Centre’s stance in the SC hearing?

What’s in today’s article?

• Why in News?
• What is the Case of the Same-sex marriage?
• What are the Arguments of Petitioners?
• SC’s Previous Judgments on the Issue
• Six Key Arguments of the Centre

Why in News?

• The Supreme Court of India is currently hearing the case seeking legal recognition of same sex marriage.
• While urging the Court to leave the issue to Parliament, the Centre argued that the law – the Special Marriage Act (SMA) 1954 – cannot be re-drafted again to allow same-sex marriage.

What is the Case of the Same-sex marriage?

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

What are the Arguments of Petitioners?

• Marriage is a social status which is bestowed by law and through which society accepts, respects and validates a couple.
• Same-sex couples do not enjoy the rights of married couples including the right to adopt or have children by surrogacy, automatic rights to inheritance, pension, maintenance and tax benefits.
• The SC has repeatedly said that all adults have the right to marry a person of their choice.
• 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.

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SC’s Previous 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 fulfillment 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)].

Six Key Arguments of the Centre:

• Religious definitions of marriage: Various religions have always recognised marriage only between a man and a woman.
• Legitimate interest of state: Responding to the argument of the petitioners that the state can have no role in regulating personal relationships, the Centre said that the right to marry is always subject to the statutory regime.
• The right to privacy: The right to privacy cannot be extended to marriage. This is because consulting adults want societal acceptance of the relationship by way of marriage.
• Parliament must decide: There exists a democratic right of people to regulate themselves through their representatives in the Parliament.
  • There are a total 72 categories of genders falling within the LGBTQIA+ community. This would mean several permutations and combinations of marriage and specific problems arising therefrom.
• Interpreting the law: The entire architecture of the Special Marriage Act rather than examine a few words like husband, wife, etc., is required.
• Effect on personal laws: The personal laws will inevitably be affected even if the Court only looks at the Special Marriage Act.
  • For example, under Section 19 of the Special Marriage Act, the parties married lose their right to family property.
  • Although, they will continue to be governed under their personal laws in all other aspects such as divorce, inheritance and adoption.

Q1) What is the Section 377 of the Indian Penal Code (IPC)?

Section 377 of the IPC is an act that criminalises homosexuality. However, in a historic verdict (Navtej Singh Jauhar case 2018), the Supreme Court of India decriminalised the Section 377 of the IPC and allowed gay sex among consenting adults in private.

Q2) What is the KS Puttaswamy vs Union of India case?

In 2017, the nine Judge Bench in this case unanimously reaffirmed the right to privacy as a fundamental right under the Constitution of India.

Source: Supreme Court same-sex marriage hearing: What is the Centre’s stance on the matter?