Central idea

• Recently, the Supreme Court referred a batch of petitions seeking the legal recognition of same-sex marriages to a Constitution Bench. The Union government has opposed the petitions. Law Minister Kiren said that marriage is a matter of policy to be decided by Parliament and the executive alone.

What is mean by Same-sex marriage?

• Same-sex marriage is the legal recognition of a marriage between two individuals of the same sex.
• It grants same-sex couples the same legal and social recognition, rights, and privileges that are traditionally associated with marriage, including property rights, inheritance rights, and the ability to make decisions for each other in medical emergencies.
• The recognition of same-sex marriage varies around the world, with some countries legalizing it while others do not.
• The issue has been the subject of much debate and controversy, with arguments for and against same-sex marriage based on religious, cultural, social, and legal considerations.

Same-sex marriage in India

• Same-sex marriage is currently not legally recognized in India.
• Section 377 of the Indian Penal Code, which criminalized homosexuality, was struck down by the Supreme Court of India in 2018, which was a landmark decision for LGBTQ+ rights in the country.
• However, there is still no law that allows same-sex couples to legally marry or have any legal recognition of their relationships.

Government’s argument

• In its affidavit to the Supreme Court, the government argued that the traditional concept of marriage, consisting of a biological man, woman and child, cannot be disrupted.
• It claimed that recognising same-sex marriages could cause havoc in the system of personal laws.
• As different from many liberal democracies, in India, aspects of marriage, succession and adoption are governed by religious personal laws.

What petitioners are claiming?

1. Same-sex marriage as a matter of rights

• Any social policy is liable to judicial interference if rights are violated.
• The petitioners rely on the rights to equality and non-discrimination as laid out in Articles 14 and 15.
• The Constitution prohibits the state from discriminating on the basis of sex.
• Sex has been interpreted by the Supreme Court in Navtej Singh Johar (2018) to include sexual orientation. Granting the right to marry to heterosexual couples and not to homosexual couples clearly discriminates on the basis of their sexual orientation.

2. Same-sex marriage is a matter of privacy

• Right to privacy: Supreme Court recognised this right to be part of the right to life and liberty under Article 21 of the Constitution in the celebrated Puttaswamy (2017) verdict.
• What court said on privacy: Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.
• State currently denies this right: The right to privacy entails the right of the citizens to make decisions about their family life and marriage. The state currently denies same-sex couples this right.
• The Special Marriage Act: The Special Marriage Act is a secular law which works alongside religious personal laws. Same-sex marriages can be recognised under the Special Marriage Act. The Act already speaks of marriages between any two persons which are solemnised under it. Any two persons can include two persons of the same sex.

Special Marriage Act

• The Special Marriage Act is a law in India that allows individuals of different religions or nationalities to marry each other.
• It was enacted in 1954 and came into effect from 1955.
• The Special Marriage Act allows for inter-caste and inter-religious marriages, and couples who register under this act are not required to change their religion or follow any religious rites or rituals.
• The act also provides for divorce on certain grounds and maintenance to the spouse and children.

Consider the situation in the United States

• In Obergefell v Hodges (2015), the Supreme Court of the United States held that same-sex couples have a constitutional right to marriage.
• Thirty-one out of the 50 states in the United States have marriage laws that define marriage as between a man and a woman.

Conclusion

• The debate on legal recognition of same-sex marriages in India continues to be a contentious issue, with the government and petitioners presenting opposing views. However, given the complex social, cultural, and legal considerations, any decision regarding same-sex marriage should be carefully evaluated to ensure that it is inclusive and respects individual rights. Ultimately, it is important to arrive at a balanced and just solution that upholds the principles of equality and non-discrimination for all individuals, regardless of their sexual orientation.

Mains Question

Q. What do you understand by same-sex marriage? Describe same sex marriage situation in India by highlighting both the arguments.

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