The Hindu Editorial Analysis- 17th April 2024 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

No support from the BJP, ‘partial allies’ in the Opposition

Why in News?

From opposing the legalisation of same-sex marriage in the Supreme Court of India initially to maintaining a diplomatic silence after the Court handed down its eventually disappointing judgment in 2023 (in Supriyo @ Supriya Chakraborty & Anr. vs Union of India), the Congress party has released its Nyay Patra, its election manifesto for 2024, which has a dedicated section on the rights of senior citizens, persons with disabilities, and LGBTQIA+ people.

Summary of Same-Sex Marriage Verdict

• Against Constitutional Validity: The Supreme Court, through a five-judge Constitution Bench led by the Chief Justice of India, ruled 3:2 against granting constitutional validity to same-sex marriages. The Court emphasized that the power to legalize such marriages lies with Parliament and state legislatures.
• Domain Of Parliament: The Chief Justice of India highlighted that the judiciary cannot modify the Special Marriage Act of 1954 to accommodate same-sex couples. This responsibility falls on the legislative bodies to enact suitable laws.
• Evolution of Marriage Concept: The Supreme Court acknowledged that the institution of marriage is dynamic. It recognized the equal rights of queer individuals to form a "union," despite affirming that there is no explicit fundamental right to marry under the Constitution.

Key Points Explained

• Constitutional Stand: The apex court's decision indicates a reluctance to confer constitutional recognition to same-sex marriages, deferring the matter to the legislative domain.
• Judicial Restraint: The Chief Justice's stance underscores the judiciary's limited role in amending existing laws, emphasizing the importance of parliamentary action in addressing such societal shifts.
• Social Progression: By affirming the freedom of queer individuals to form unions, the ruling reflects a nuanced understanding of evolving social norms and the need for legal adaptations.

Legal Aspects of Same-Sex Unions in India

• Supreme Court's Perspective on Marriage:
  • Marriage is viewed as a dynamic institution by the Supreme Court.
  • The SC upholds the right of queer individuals to form a "union" with equal rights.
  • All five judges on the Bench unanimously agreed that marriage isn't a fundamental right under the Constitution.
• CJI and Justice Kaul's Stance (Minority Opinions):
  • Civil Union Defined:
    • A "civil union" grants same-sex couples specific legal rights and responsibilities akin to those of married couples.
    • Despite similarities to marriage, a civil union lacks the same legal recognition in personal law.

The Right to Marry in Indian Constitution

• The right to marry is not explicitly deemed a fundamental or constitutional right in the Indian Constitution but is considered a statutory right.
• Marriage is governed by various statutory laws, with its acknowledgment as a fundamental right evolving through judicial pronouncements of the Indian Supreme Court. Such legal declarations are binding on all courts in India under Article 141 of the Constitution.

Supreme Court's Earlier Perspectives on Same-Sex Marriages

• Marriage as a Fundamental Right: In the case of Shafin Jahan v. Asokan K.M. and others (2018), the Supreme Court linked the right to marry a person of one's choice with Article 21 of the Constitution, considering it integral. Article 16(2) of the Indian constitution prohibits discrimination based solely on various grounds. The right to marry is seen as essential to the liberty protected by the Constitution, allowing individuals the freedom to make decisions crucial to their pursuit of happiness.
• LGBTQ Community's Entitlement: In the case of Navjet Singh Johar and others v. Union of India (2018), the Supreme Court affirmed that members of the LGBTQ community have the same constitutional rights as all other citizens, including liberties safeguarded by the Constitution. They are entitled to equal citizenship and the protection of law.

Marriage as a Fundamental Right

• While discussing Article 16 of the Universal Declaration of Human Rights and referencing the Puttaswamy case, the Supreme Court emphasized that the right to marry a person of one's choice is an essential component of Article 21 of the Constitution.
• Article 16 (2) in the Indian constitution mandates that discrimination based solely on factors such as religion, race, caste, sex, descent, place of birth, residence, or any of them is impermissible.
• The right to marry is considered intrinsic to the liberty guaranteed by the Constitution as a fundamental right. It underscores the significance of individuals making decisions essential to their pursuit of happiness.
• Matters of belief and faith, encompassing the freedom to choose what to believe, are recognized as central to constitutional liberty.

LGBTQ Community Entitled to Constitutional Rights

• In the case of Navjet Singh Johar and others v. Union of India (2018), the Supreme Court declared that members of the LGBTQ community are entitled to all constitutional rights on par with other citizens.
• The court affirmed that individuals from the LGBTQ community deserve equal citizenship and protection under the law.

Significance of Marital Rights

• Marriage rights are deeply connected to constitutional liberties, allowing individuals to make personal decisions crucial for their well-being.

What is the Special Marriage Act (SMA) 1954?

• Marriages in India can be registered under different personal laws like the Hindu Marriage Act, 1955, Muslim Personal Law Application Act, 1937, or the Special Marriage Act, 1954. The Special Marriage Act allows civil marriage for all Indian nationals, irrespective of religion, providing a secular alternative to traditional marriage laws.
• It is the Judiciary's responsibility to safeguard the rights of both partners in a marriage solemnized under the Special Marriage Act, 1954.
• The Act facilitates marriages between individuals of different religious backgrounds and outlines procedures for marriage solemnization and registration.
• By opting for a marriage under this law, individuals are not bound by personal laws but by the provisions of the Special Marriage Act, 1954.

Marriages in India

• Marriages in India can be legally formalized under different personal laws:
• Hindu Marriage Act, 1955
• Muslim Personal Law Application Act, 1937
• Special Marriage Act, 1954

Special Marriage Act, 1954

• The Special Marriage Act, 1954 allows for civil marriage for Indian citizens and nationals abroad, regardless of their religious beliefs.
• Marriages conducted under this law are governed by the Special Marriage Act, not personal laws.

Key Features

• Enables individuals from different religious backgrounds to marry.
• Defines procedures for marriage solemnization and registration for non-Hindus, Buddhists, Jains, or Sikhs.
• As a secular law, it helps individuals break away from traditional marriage norms.
• Allows individuals from diverse religious backgrounds to unite in marriage.
• from diverse religious backgrounds to unite
• Defines the process for both the solemnization and registration of marriage, applicable when one or both spouses are not Hindus, Buddhists, Jains, or Sikhs.
• both the solemnization and registration of marriage
• As a secular Act, it aids in freeing individuals from conventional marriage prerequisites.
• As a secular Act

Equal Rights and Protection Under the Law

• All individuals, irrespective of their sexual orientation, possess the right to marry and establish a family.
• It is vital that same-sex couples receive identical legal rights and protections as heterosexual couples.
• The non-recognition of same-sex marriage constitutes discrimination that undermines the dignity of LGBTQIA couples.

Strengthening Families and Communities

• Marriage offers social and economic advantages to couples and their families, which are equally beneficial to same-sex individuals.

Cohabitation as a Fundamental Right

• The acknowledgment by the Chief Justice of India (CJI) that cohabitation is a fundamental right emphasizes the government's duty to legally acknowledge the societal impact of such relationships.

Complexity of Biological Gender

• The Supreme Court of India highlights that biological gender is not fixed and that gender extends beyond mere physical characteristics.
• Gender is a multifaceted concept that transcends simplistic definitions based solely on anatomy.

Global Acceptance of Same-Sex Marriage

• Many countries worldwide have legalized same-sex marriage, and depriving individuals of this right in a democratic society contradicts global principles.
• Currently, same-sex marriage is legal in 32 countries, reflecting a growing global acceptance of diverse forms of partnership.
• Legal Status of Same-Sex Marriage:

  In 32 countries around the world, same-sex marriage is legally recognized.

Arguments Against Same-Sex Marriage

• Religious and Cultural Objections:

  Many religious and cultural communities uphold the view that marriage should exclusively involve a man and a woman. They contend that altering the traditional conception of marriage contradicts their core beliefs.

• Procreation Concerns:

  Some individuals argue that marriage primarily serves the purpose of procreation, positing that same-sex couples are unable to biologically bear children. This viewpoint asserts that permitting same-sex marriage disrupts the natural order.

• Legal Implications:

  There are apprehensions about the legal ramifications of allowing same-sex marriage, including issues related to inheritance, taxation, and property rights. Critics suggest that adapting all laws and regulations to accommodate same-sex marriage would pose significant challenges.

• Challenges with Child Adoption:

  When queer couples adopt children, it can result in societal biases, discrimination, and adverse effects on a child's emotional and psychological well-being. This is particularly evident in societies like India where acceptance of the LGBTQIA+ community is not universally embraced.

What Could be the Way Forward?

• Raise Awareness: The aim of awareness initiatives is to advocate for equality and foster acceptance of all sexual orientations within society, while also broadening public understanding of the LGBTQIA community.
• Legal Reforms: Proposed amendments to the Special Marriage Act of 1954 seek to permit same-sex couples the legal right to marry, thereby granting them equivalent rights and privileges as heterosexual couples. Additionally, introducing contractual agreements could ensure that homosexual individuals are entitled to similar rights as their heterosexual counterparts.
• Dialogue and Engagement: Engaging in constructive conversations with religious leaders and communities can serve to bridge the gap between traditional beliefs and contemporary attitudes regarding same-sex relationships. This dialogue aims to foster mutual understanding and respect.
• Legal Challenges: The LGBTQIA community in India may choose to legally challenge existing laws that prohibit same-sex marriage, potentially in court. Such legal endeavors have the potential to set important legal precedents that could lead to the eventual legalization of same-sex marriage.
• Collaboration: The legalization of same-sex marriage necessitates a unified effort from various stakeholders, including the LGBTQIA community, governmental bodies, civil society organizations, and religious leaders. Through collective action, a more inclusive society can be created, wherein individuals have the liberty to love and marry without discrimination based on gender.

Strategies for Legalizing Same-Sex Marriage

• Engagement and Dialogue: Initiating conversations with religious groups can help bridge the divide between traditional convictions and contemporary views on same-sex partnerships.
• Legal Battles: The LGBTQIA community in India can contest the constitutionality of existing laws that prohibit same-sex unions in court. These legal confrontations can set a precedent that may lead to the legalization of same-sex marriage.
• Collaboration: Achieving the legalization of same-sex marriage necessitates a united front involving the LGBTQIA community, governmental bodies, civil society, and religious figures. Through cooperative efforts, a more inclusive society can be fostered where individuals are free to love and marry irrespective of gender.