What’s the news?
The Supreme Court of India’s line, with respect to same sex persons, that there is no fundamental right to marry, is incorrect.
Central idea
The Supreme Court’s decision in Supriyo Chakraborty judgement is unfair as it denies same-sex couples the right to marry. This reinforces discrimination and stigma against LGBTQI communities. It’s crucial to correct this for equal rights.
Debate and controversy on 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.
Key Challenges and Legal Maze
- Background and Section 377: The legal journey began with the Delhi High Court’s 2009 decision in Naz Foundation, striking down Section 377 of the Indian Penal Code. However, the Supreme Court’s 2013 ruling in Suresh Kumar Koushal reinstated the criminalization of non-heterosexual relationships, only to be overturned in 2018 with Navtej Singh Johar.
- Stigmatization and Societal Perception: The LGBTQI communities faced severe challenges, including blackmail, torture, and violence, under the oppressive Section 377. The societal perception that a relationship less than marriage lacks legitimacy fueled strong demands for the right to marry.
- Global Legal Shifts: The Supreme Court’s reluctance to consider foreign jurisprudence contrasts with global trends. Many countries, including the United States, have evolved their legal frameworks by drawing on international experiences and human rights principles to recognize same-sex marriage.
Government Schemes and Initiatives
- NALSA and Transgender Rights: The NALSA judgment recognized the right of individuals to identify their gender, paving the way for the Transgender Persons (Protection of Rights) Act. While this Act addresses gender identity, the recent judgment on same-sex marriage presents a contradiction in the application of rights.
- International Commitments: India’s commitment to the Universal Declaration of Human Rights (UDHR) has been vital in shaping legislation. However, the recent verdict seemingly ignores India’s pledge to accord with international human rights standards.
| Highly important points for critical analysis in mains and essay
· Pioneering Activism: The fight against Section 377 and for LGBTQI rights in India has a long history. The Lawyers Collective, led by activists like Anand Grover, initiated legal challenges against Section 377 as early as 2001, setting the stage for future legal battles.
· Unique Transgender Recognition: While the recent judgment denies same-sex marriage, it recognizes the legality of marriages involving transgender individuals. This reveals an interesting legal nuance, emphasizing the evolving understanding of gender identity in Indian law.
· Symbolism of Marriage: The demand for the right to marry goes beyond legal recognition. It symbolizes the quest for social acceptance, legitimacy, and equal standing in society. The denial of this right perpetuates stigmatization and reinforces societal prejudices.
· Resilience of LGBTQI Community: Despite setbacks, the LGBTQI community has demonstrated remarkable resilience. The progression from challenging Section 377 to advocating for the right to marry showcases the community’s determination to overcome legal barriers and societal biases.
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Way Forward
- Correcting the Legal Framework: There is an urgent need to revisit the foundational decision that there is no fundamental right to marry in India. Aligning the legal framework with the principles of equality and non-discrimination is paramount.
- Incorporating International Jurisprudence: While the Court has rejected the use of foreign jurisprudence, there is a compelling case to reconsider this stance. Introducing global perspectives, such as the doctrine of intimate association, can enhance inclusivity and align Indian legal principles with evolving global standards.
- Empowering LGBTQI Communities: Beyond legalities, empowering LGBTQI communities involves addressing societal perceptions. Recognition of same-sex marriage is crucial not only for legal rights but also for dismantling stigmas and prejudices.
Conclusion
The LGBTQI community’s call for equality in marriage is not just a legal battle but a societal transformation. A correction of the recent judgment is a step towards ensuring that no citizen is deemed “not fit for marriage” based on their sexual orientation.
The journey involves falls and rises. Learning from past victories, the LGBTQI community must persist in the fight for equal rights, ensuring that the wrongs are corrected, and the path to equality is firmly established.
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