Same Sex Marriage in India
2023 OCT 19
Mains >
Society > Features of Indian Society > Vulnerable & Backward sections
IN NEWS:
- Recently, a five-judge Constitution Bench headed by Chief Justice of India (CJI) D.Y. Chandrachud unanimously refused to grant legal status to same-sex marriages.
- The Bench, also comprising Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and P. S. Narasimha, in a 3-2 majority verdict, also declined to allow civil unions for non-heterosexual couples.
- While two judges,the CJI and Justice Sanjay Kishan Kaul, recognized that queer couples can form “civil unions”, they were in the minority. The majority of three judges said that the issue lay exclusively in the domain of the legislature.
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Civil union:
- A ‘civil union’ refers to the legal status that allows same-sex couples specific rights and responsibilities that are normally conferred upon married couples. Although a civil union resembles a marriage, it does not have the same recognition in personal law as marriage.
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CONSTITUTION BENCH'S VIEWS ON KEY ISSUES:
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Issues
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SC’s verdict/views
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1. The fundamental right to marry:
The petitioners had argued that there exists a fundamental right to marry a person of one’s own choice under the Constitution and that the court must address the denial of that right.
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- All five judges on the bench agreed that there is no fundamental right to marry under the Constitution.
- The court differentiated between what is “fundamentally important to an individual” and an enforceable fundamental right.
- “The fundamental importance of marriage remains that it is based on personal preference and confers social status. The importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support,” Justice Bhat said.
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2. Interpretation of Special Marriage Act(SMA):
The petitioners had asked the SC to interpret the word marriage as between “spouses” instead of “man and woman”. Alternatively, the petitioners had asked for striking down provisions of the SMA that are gender-restrictive.
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- All five judges unanimously agreed that it is not possible to tweak the Special Marriage Act, 1954, by using gender-neutral language to allow same-sex marriage.
- The CJI said striking down the SMA provisions would jeopardize the legal framework for interfaith and inter-caste couples.
- He added that interpreting the SMA in a gender-neutral way would amount to “judicial lawmaking”, which would violate the doctrine of separation of powers.
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3. Queer couples’ right to adopt a child:
The petitioners had argued that the guidelines of the Central Adoption Resource Authority (CARA), which do not allow unmarried couples to jointly adopt children, are discriminatory against queer couples who cannot legally marry.
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- The majority opinion refused to strike down the Central Adoption Resource Authority (CARA) regulations that restrict queer couples from adopting a child.
- The law is equipped to protect the child in case a heterosexual marriage ends or a partner dies, but there is no such framework for homosexual couples at present, the judgment states, adding that it would not be in the interest of the child to strike down the regulations.
- The minority view by CJI Chandrachud and Justice Kaul struck down specific guidelines by the Central Adoption Resource Authority (CARA) to the extent that it disallows same-sex or unmarried couples from jointly adopting a child.
- The CJI, in his opinion, said that it is discriminatory to assume that only married, heterosexual couples can provide a safe space for raising children.
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4. Civil unions for queer couples
The halfway approach to recognizing civil unions for queer couples was debated during the hearing. Before full marriage rights were recognized for same-sex couples by the US Supreme Court, several states had allowed civil unions.
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- The constitutional bench, in a 3-2 majority verdict, declined to allow civil unions for non-heterosexual couples.
- The CJI in his minority opinion, and Justice Kaul in his opinion concurring with the CJI, said that the right to form unions emanates from the fundamental right to freedom of speech and expression, and the right to life.
- The minority view also said that with civil union status, same-sex couples must be extended the “bouquet of rights” that heterosexual couples are entitled to.
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ARGUMENTS IN FAVOUR OF SAME SEX MARRIAGE
- Denial of fundamental rights:
- Exclusion of same-sex couples from marriage rights is an affront to our constitutional values.
- Articles 15 & 16 prohibit discrimination based on gender but these rights are often violated in case of LGBTQIA+
- Article 19 1 (a) provides a citizen with the right to freedom of sexual expression. But in the case of same sex marriage, this right is denied.
- In NALSA v. Union of India, Supreme Court categorically held that the Indian Constitution protects non-binary individuals and that the protections envisaged under Articles 14, 15, 16, 19 and 21 cannot be restricted to the biological sex of male or female.
- In Navtej Singh Johar, SC decriminalized Section 377 of IPC and in K S Puttaswamy judgment , SC upheld the right to privacy. In both the cases the Supreme Court has held that LGBTQ+ persons enjoy the right to equality, dignity and privacy guaranteed by the Constitution on the same footing as all other citizens.
- Access to financial and social security benefits
- Access to financial and social security benefits are only accorded to those who have the legal sanction of a marriage, same-sex couples have trouble accessing some basic relationship rights.
- For instance, buying a house together, securing medical insurance, having a joint bank account, or even on visa applications, there is no recognition of same-sex partners.
- To ensure legal right over property:
- For instance, one of the petitioners in the same sex case social worker Koel Ghosh who lives in her ancestral house fears that if something happens to her, the family may throw her partner out from the house as she has no legal right over the property.
- LGBTQIA+ people at risk of physical & mental violence:
- Legal recognition for same-sex unions would mean that a couple can access police and legal protection.
- Regarding Children:
- Adoption, surrogacy, or even IVF for lesbian couples is almost impossible legally, with one person having to bear the full legal responsibility.
- Global Acceptance:
- Same-sex marriage is legal in 32 countries around the world, and denying this right to individuals in a democratic society goes against the global principles.
GOVERNMENT OF INDIA (GOI)’S STAND ON SAME SEX MARRIAGE:
GoI's response to petitions filed in the Supreme Court seeking legalization of same-sex marriage:
- The Central Government argues that marriage depends on customs, rituals, practices, cultural ethos, and societal values.
- GoI said that definition of marriage is socially, culturally and legally ingrained into the very idea of the heterogeneous institution (a union between two persons of the opposite sex) of marriage.
- The Supreme Court had only decriminalised sexual intercourse between same-sex persons in Navtej Singh Johar v. Union of India (2018) , and not legitimised this “conduct”.
- The decriminalisation of Section 377 IPC does not give rise to a claim to seek recognition for same-sex marriage.
- GoI said that judicial interference will cause complete havoc with the delicate balance of personal laws.
- Any deviation from the established norm can only be made through the legislature, and not the Supreme Court.
ARGUMENTS AGAINST SAME SEX MARRIAGE:
- Societal tradition:
- Concept of marriage in Indian society across different religions is based on a husband, a wife, and a child, which find it difficult accept same sex couples.
- Procreation argument:
- Certain sections believe that the primary purpose of marriage is procreation. As the same-sex couples cannot have biological children ,they oppose same-sex marriage.
- Fundamental rights are not absolute:
- Fundamental rights cannot be an untrammelled right and are subject to ‘reasonable’ restrictions.
- Judicial Overreach:
- As the power of amendment in the Special Marriage Act-1954 or personal laws are vested in the legislature and not in the judiciary.
- Legal complications:
- Allowing same-sex marriage will create legal problems, such as issues with inheritance, tax, and property rights because it would be too difficult to change all the laws and regulations
WAY FORWARD:
- Bouquet of rights for queer couple in unions:
- As the CJI stated that for the right to form "civil unions" to have “real meaning”, the state must recognize “a bouquet of entitlements that flow from an abiding relationship of this kind”.
- Solicitor General Tushar Mehta’s statement that a committee chaired by the Cabinet Secretary would be constituted to set out the rights that would be available to queer couples in unions is a positive step in this regard.
- Collaboration and effective communication:
- Various stakeholders, including the LGBTQIA+ community, the government, civil society, and religious leaders, have to work together to make same-sex marriage legal and socially acceptable.
- Discussions with religious leaders and local communities can aid in bridging the gap between traditional perspectives and current views on same-sex couples.
- International human rights treaties and conventions:
- As India is a signatory to various international human rights treaties and conventions, which require it to protect the rights of all individuals, including the LGBTQ+ community, it is imperative that India legalizes same sex marriage to ensure equal rights and opportunities for all individuals regardless of their sexual orientation.
- Directives by the Supreme Court:
- Ensuring that the queer community is not discriminated against because of gender identity or sexual orientation.
- Sensitising public about queer identity.
- Establishing hotline numbers the queer community can access.
- Establishing safe houses in all districts to provide shelter to members facing violence.
- A ban on treatments that aim to change gender identity or sexual orientation.
- Inter-sex children are not forced to undergo operations.
- No person shall be forced to undergo any hormonal therapy.
- Ensure there is no discrimination in access to goods and services.
- The Mental Healthcare Act must formulate modules to safeguard mental health of queer persons and implement programmes to reduce suicides.
CONCLUSION:
- Even if the court rules in favour or the government supports same-sex marriage, the implementation at the ground level in a diverse country with well-entrenched traditions will not be easy. Therefore, awareness of sex, gender, and constitutional rights from the school level itself is the need of the hour, which would bring positive change in social attitudes towards same-sex couples.
PRACTICE QUESTION:
Q. “Enforcing something like same-sex marriage in a diverse country with well-entrenched traditions will not be easy”. Discuss.
