SAME-SEX MARRIAGE
1. Context
2. Petitions
- The SMA provides a civil form of marriage for couples who cannot marry under their personal law and both the recent pleas seek to recognise same-sex marriage in this Act and not personal laws.
- The first petition was filed by two men, Supriyo Chakraborty and Abhay Dang, who have been a couple for 10 years.
- Their petition 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.
- About 15 legislations which guaranteed the rights of wages, gratuity, adoption, surrogacy and so on were not available to LGBTQ+ citizens.
- The petitioners emphasised that the SMA "ought to apply to a marriage between any two persons, regardless of their gender identity and sexual orientation".
- The other petition was filed by a same-sex couple of 17 years Parth Phiroze Mehrotra and Uday Raj Anand.
- The recognition of same-sex marriage was only a "sequel" or a continuation of the Navtej Singh Johar Judgement of 2018 (decriminalising homosexuality) and the Puttaswamy judgement of 2017 (affirming the Right to Privacy as a fundamental right).
- The petition did not touch on personal laws but only sought to make the 1954 Act "gender-neutral".
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Their plea pointed out that while Section 4 of the SMA permitted the solemnisation of marriage between any two persons, a subsequent section placed restrictions.
It said " The use, in Section 4 (C) of the words 'male' and 'female', as well as the use of gendered language such as the terms "husband/wife" and "bride/ bridegroom" in other sections of the Act, limit the access to marriage to a couple comprising one 'male' and one 'female".
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3. Similar petitions
- There are currently a total of nine petitions pending before the High Court of Delhi and Kerala, seeking to recognise same-sex marriages under Acts such as the SMA, the Foreign Marriage Act and codified personal laws.
- The Supreme Court Bench transferred the various pending issues before the High Courts to the Supreme Court.
4. The key takeaways from the verdict
- All five judges, including the CJI, unanimously agreed that there is no fundamental right to marry under the Constitution.
- The judges unanimously concurred that it is not possible to modify the Special Marriage Act, 1954, using gender-neutral language to permit same-sex marriage. The petitioners sought to interpret the term "marriage" as between "spouses" instead of "man and woman" or to strike down gender-restrictive provisions of the Act.
- CJI Chandrachud expressed that striking down provisions of the Special Marriage Act or interpreting it in a gender-neutral way would jeopardize the legal framework for interfaith and inter-caste couples. He argued that this would constitute "judicial lawmaking" and violate the doctrine of separation of powers.
- While CJI Chandrachud and Justice Kaul advocated for civil unions for same-sex couples, they were in the minority. A civil union grants legal recognition to same-sex couples, offering them specific rights and responsibilities akin to marriage. However, it does not have the same status in personal law.
- The minority view, articulated by CJI Chandrachud and supported by Justice Kaul, emphasized that the right to form unions stems from fundamental rights like freedom of speech and expression, as well as the right to life. They asserted that same-sex couples in civil unions should be entitled to a range of rights enjoyed by heterosexual couples.
- All five judges acknowledged the government's commitment to forming a high-level Cabinet committee to explore the rights that can be granted to non-heterosexual couples. This includes issues such as joint bank accounts, spousal beneficiary rights for provident funds, pensions, inheritance, and the ability to make medical decisions for one another.
- The minority view, represented by CJI Chandrachud and Justice Kaul, struck down specific guidelines set by the Central Adoption Resource Authority (CARA) that prohibited same-sex or unmarried couples from jointly adopting a child.
1. Fundamental Right to Marry
Minority View: Chief Justice D Y Chandrachud disagreed with the argument that there's an inherent fundamental right to marry under the Constitution. He suggested that marriage gained its significance due to state regulation, thus marriage itself is not fundamental.
Majority View: All five judges, including Justice Bhat, emphasized that personal preferences, no matter how important to an individual, do not necessarily constitute fundamental rights. They cited the risk of undermining the legal framework for interfaith and inter-caste couples if the Special Marriage Act (SMA) were to be modified to recognize same-sex marriage.
2. Interpretation of the Special Marriage Act
Minority View: CJI Chandrachud argued that altering the SMA to allow same-sex marriage would be legislative in nature and would harken back to an era when interfaith or inter-caste couples couldn't marry.
Majority View: Justice Bhat echoed the minority view's concerns about modifying the SMA, as it was designed to cater exclusively to heterosexual couples of different faiths. The majority view suggested that only the legislature could rectify this.
3. Queer Couples' Right to Adopt a Child
Minority View: CJI Chandrachud struck down certain CARA regulations, asserting that they did not serve the child's best interests and perpetuated disadvantages against the queer community. The minority argued that the law should not assume parenting abilities based on an individual's sexuality.
Majority View: The majority concurred with the minority's concerns about discrimination against queer couples in adoption matters. Justice Bhat pointed out the discriminatory aspects of this policy but suggested that only the legislature and executive could make this change.
4. Civil Unions for Queer Couples
Minority View: CJI Chandrachud stated that the right to form intimate associations is part of the freedom of speech and expression, emphasizing that the state must recognize a range of entitlements arising from such relationships. A committee chaired by the Cabinet Secretary would define the rights available to queer couples in unions.
Majority View: Justice Bhat rejected the notion that the court could prescribe the "choice" of civil unions for queer couples. Instead, the majority opinion suggested that the state should facilitate this choice if the community reaches a consensus on this matter.
6. Navtej Johar judgment (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 based on sexual orientation is a violation of freedom of speech and expression".
- Besides decriminalising consensual homosexuality, the judgment also made other important observations.
- It noted that homosexuals had the right to live with dignity and were "entitled to the 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 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.
- CJI Chandrachud also emphasised that the case was not solely about striking down Section 377 but also about the rights of the LGBTQ+ community.
7. NALSA vs Union of India judgment (2014)
8. Government's stand
- Late last year, 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".
- He also argued that there were misconceptions about the Navtej Kaur judgment. "It merely decriminalises It does not talk about marriage," Mr Metha had stated.
- The Counsel of the petitioner had rejected this by saying that while the 2018 judgement did not mention the words "same-sex marriage" the "inevitable conclusion" favoured recognising it.
- In its 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".
- It also argued against the urgency of the pleas by saying nobody was "dying" in the absence of a marriage certificate.
8. Other countries
- A total of 32 countries around the world have legalised same-sex marriages, some through legislation and others through judicial pronouncements.
- Many countries first recognised same-sex civil unions as the escalator step to recognise homosexual marriage.
| Civil unions or partnerships are similar arrangements to marriages which provide legal recognition of unmarried couples of the same or opposite sex to grant them some of the rights that come with marriage such as inheritance, medical benefits, employee benefits to spouses, managing joint taxes and finances and in some cases even adoption. |
- The Netherlands was the first country in 2001 to legalise same-sex marriage by amending one line in its civil marriage law.
- In some countries, the decriminalisation of homosexuality was not followed for years by the recognition of same-sex marriage, for instance, in the U.S. the former happened in 2003 while the latter was in 2015.
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For Prelims: Same-Sex Marriage, Special Marriage Act, LGBTQ+ citizens, Navtej Singh Johar Judgement, Puttaswamy judgement, NALSA vs Union of India judgment,
For Mains:
1. What is same-sex marriage? Discuss the various issues to legalize same-sex marriage in India. (250 Words)
2. LGBTQ community “are entitled to the full range of constitutional rights”. Comment (250 Words)
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Previous Year Questions:
Which Article of the Constitution of India safeguards one’s right to marry the person of one’s choice? (UPSC 2019) (a) Article 19 (b) Article 21 (c) Article 25 (d) Article 29 Answer (b) |
