Legalising same-sex marriage

  • 1st December, 2022

Context:

  • A Supreme Court Bench issued notices to the Centre and the Attorney General of India, seeking their response to allow solemnisation of same-sex marriage under the Special Marriage Act, (SMA) 1954.

Petitioner argument:

  • Special Marriage Act, (SMA) 1954 provides a civil form of marriage for couples who cannot marry under their personal law and the recent pleas seek to recognise same-sex marriage in relation to this Act and not personal laws.
  • Petitioner argued that the SMA was “ultra vires” the Constitution “to the extent it discriminates between same-sex couples and opposite-sex couples”. 
  • It stated that the Act denied same-sex couples both “legal rights as well as the social recognition and status” that came from marriage.
  • The petitioners emphasised that the SMA “ought to apply to a marriage between any two persons, regardless of their gender identity and sexual orientation”.
  • Further petitioner argued that the recognition of same-sex marriage was only a “sequel” or a continuation of the Navtej Singh Johar judgment of 2018 (decriminalising homosexuality) and the Puttaswamy judgment of 2017 (affirming the Right to Privacy as a fundamental right).

Earlier views of Supreme Court:

  •  In the landmark Navtej Johar judgment of 2018, the five-judge Supreme Court Bench had decriminalised homosexuality and unanimously held that the criminalisation of private consensual sexual conduct between adults of the same sex under the more than 150-year-old Section 377 of the Indian Penal Code was unconstitutional. 
  • The judgment had apologised to the LQBTQ+ community for the wrongs of history and had also stated: “Sexual orientation is natural. Discrimination on the basis of sexual orientation is violation of freedom of speech and expression”.
  • Besides decriminalising consensual homosexuality, judgement further noted that homosexuals had the right to live with dignity and were “entitled to protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them.”
  •  It had stated that a person’s bodily autonomy be constitutionally protected and that sharing intimacy in private with a person of choice formed a part of the individual’s right to privacy.
  • Further, in the NALSA vs Union of India judgment (2014), the Court had said that non-binary individuals were protected under the Constitution and fundamental rights such as equality, non-discrimination, life, freedom and so on could not be restricted to those who were biologically male or female.

Government’s stand:

  • While responding to the pleas seeking recognition of same-sex marriages in the Delhi High Court, Solicitor General Tushar Mehta for the Centre had said that as per the law, marriage was permissible between a “biological man” and “biological woman”. 
  • In an affidavit opposing the pleas, the Centre had said: “The acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws”.

Conclusion:

  • A total of 32 countries around the world have legalised same-sex marriages, some through legislation while others through judicial pronouncements.
  • According to Justice D.Y. Chandrachud, Instead of washing its hands of taking a categorical position on Section 377 that criminalised homosexuality and leaving it to the “wisdom of the court [Supreme Court]”, the government should have taken a “categorical” stand one way or the other.
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