Date : 19/10/2023

Relevance: GS Paper 1- Society - Salient Features of Indian Society

Keywords: Special Marriage Act 1954, LGBTQ, Fundamental Rights, Civil Union

Context-

The Supreme Court recently issued its highly anticipated verdict, rejecting petitions to legalize same-sex marriage. The decision was made by a five-judge Constitution Bench, with a 3:2 majority ruling against granting constitutional validity to same-sex marriages. Chief Justice of India, leading the bench, concluded that the court couldn't either invalidate or amend the Special Marriage Act of 1954 to include same-sex individuals in its scope, asserting that it's the responsibility of Parliament and state legislatures to create relevant laws.

Key Highlights of Judgement

• Nonetheless, the Supreme Court emphasized that the concept of marriage is not fixed and acknowledged that queer individuals have an equal right and freedom to form a "union."
• Importantly, all five judges on the Bench unanimously agreed that there is no fundamental right to marry under the Constitution.
• In this landmark case, the Court's deference to the legislature and executive, particularly in the form of a committee suggested by the Solicitor General, indicated a missed opportunity for judicial activism.
• Historically, the Supreme Court has played an active role in shaping legal precedents on various issues, such as the rights of undertrials, workplace harassment, voter information, inter-country adoption, CBI oversight, and environmental regulation.
• However, in the case of LGBTQ+ rights, the Court opted for a more cautious approach, deferring the issue to external committees.

Arguments in favor of legalizing same-sex marriage

• Special Marriage Act of 1954: The Special Marriage Act provides a civil form of marriage that accommodates couples who are unable to marry under their personal religious laws. It offers an inclusive legal framework for those who do not conform to traditional religious norms.
• Fundamental Right: The right to marry a person of one's choice is considered a fundamental right protected by the Constitution of India and has been explicitly acknowledged by the court. This fundamental right is applicable to every individual, irrespective of their sexual orientation or gender identity. The Supreme Court held that the right to marry a person of one's choice is integral to Article 21 of the Indian Constitution, with reference to Article 16(2) which bars discrimination based on various factors, reinforcing the principle of equality.
• Equality: Members of the LGBTQ+ community possess the same human, fundamental, and constitutional rights as any other citizens. Barring them from marriage on the basis of their sexual orientation is seen as a violation of their right to equality under the law. All citizens should have equal access to the institution of marriage.
• Global Practice: Many countries around the world, including the United States, Australia, Canada, and France, have already legalized same-sex marriages. It is argued that India should align with global practices to ensure equal treatment for LGBTQ+ individuals and to promote inclusivity and diversity within society.

Arguments against legalizing same-sex marriage

• Absence of Civil Rights Issues: The 2018 Supreme Court judgment decriminalized homosexuality but didn't address civil rights matters like marriage, inheritance, or adoption, leaving them unguaranteed for the LGBTQ+ community.
• Against Biological Relation: According to current Indian marriage norms, recognition is contingent on the union of a biological man and a biological woman capable of procreation.
• Counter to Global Challenges: Legalizing same-sex marriage in India is seen as conflicting with various global standards, as some countries, like Singapore, have decriminalized gay sex without permitting marriage.
• Fundamental Rights Are Not Absolute: While fundamental rights are crucial, they are not unbounded and should not override other constitutional principles.
• Judicial Interference: The government argues that court intervention in marital statutes based on personal laws would disrupt society and counter the intentions of Parliament in framing these laws.
• Lack of Legal Framework: The existing legal framework in India does not enable LGBTQ+ community members to marry the person of their choice, causing uncertainty in areas such as adoption, joint bank accounts, and child admissions.
• Unnecessary Hype: Some argue that the matter isn't of national significance and doesn't substantially impact the majority of the population, suggesting that the focus on it is excessive.

Way Forwards

• Raising Awareness: The objective of awareness campaigns is to foster equality and tolerance for all sexual orientations and to shape public perceptions about the LGBTQIA+ community.
• Legal Reforms: Consider amending the Special Marriage Act of 1954 to permit same-sex couples to marry legally, granting them equal rights and privileges enjoyed by opposite-sex couples. Additionally, explores the creation of contractual agreements to provide similar rights for homosexual individuals as those for heterosexual couples.
• Open Dialogue and Engagement: Initiate conversations with religious leaders and communities to bridge the gap between traditional beliefs and contemporary perspectives on same-sex relationships.
• Addressing Legal Challenges: The Indian LGBTQIA+ community can pursue legal challenges to contest the constitutionality of existing laws that prohibit same-sex marriage in the courts. These legal actions can set a precedent for the eventual legalization of same-sex marriage.
• Collaborative Efforts: Achieving the legalization of same-sex marriage necessitates a unified approach involving all stakeholders, including the LGBTQIA+ community, the government, civil society, and religious leaders. Collaboration can lead to the creation of a more inclusive society where everyone has the freedom to love and marry the person of their choice, regardless of their gender.

Conclusion

In the aftermath of the Supreme Court's verdict on same-sex marriage, there is a sense of disquiet. Despite the court's erudition and sensitivity, the differing opinions among the judges reflect the challenges of finding practical solutions for the LGBTQ+ community. The Court's deference to external bodies and its cautious approach raises questions about its role in addressing human problems. As history has shown, the Court has often played a proactive role in shaping laws and guidelines until formal legislation was enacted. In the case of LGBTQ+ rights, the Court's reluctance to take a more assertive stance may have missed an opportunity for progress. The impact of this judgment will continue to be a subject of debate and analysis in legal and social circles.

Source - The Indian Express