The Hindu Editorial Analysis- 31st December 2022 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

Context

The Supreme Court recently issued a notice to the Centre on a plea to grant legal recognition to same-sex marriages and alliances between members of LGBTIQ+ community under the Special Marriage Act.

• The petition raised the absence of a legal framework which allowed members of the LGBTQ+ community to marry any person of their choice. 

What is Same-Sex Marriage?

• It is the practice of marriage between two men or between two women.
• Same-sex marriage has been regulated through law, religion, and custom in most countries of the world.
• As of 2022, marriage between same-sex couples is legally performed and recognized in more than 30 countries.
  • The most recent country legalising it is Mexico. 

Arguments in favour of legalising Same-Sex Marriage

• The Special Marriage Act of 1954: 
  • It provides a civil form of marriage for couples who cannot marry under their personal law.
• Fundamental Right: 
  • Right to marry a person of one's choice is a fundamental right guaranteed under the Constitution of India to each person and has been recognised explicitly by the court.
    • Members of the LGBTQ+ community have the same human, fundamental and constitutional rights as other citizens.
• Right to equality: 
  • The petitioners have argued that barring them from marriage violates their right to equality.
• Global practice:
  • According to global think tank Council of Foreign Relations, same sex marriages are legal in at least 30 countries, including the United States, Australia, Canada and France.

Arguments against legalising Same-Sex Marriage 

• Against Biological relation:
  • Marriage in India can be recognised only if it is between a biological man and a biological woman capable of producing children.
• Judicial interference:
  • The government has said that any interference by a court in the marital statute based on personal laws will create havoc in society and will run against the intent of Parliament in framing the laws.
• Fundamental rights are not absolute:
  • Fundamental right cannot be an untrammeled right and cannot override other constitutional principles.
• Unnecessary hype:
  • The matter is neither of national importance nor has it affected the majority of the population.
• Absence of civil rights issues: 
  • The 2018 judgment of the Supreme Court decriminalised homosexuality but did not get into civil rights issues. 
  • As a consequence, same-sex relationships are legal but civil rights such as marriage, inheritance or adoption, are not guaranteed to the lesbian, gay, bisexual, transgender, queer and intersex community.
• Lack of legal framework:
  • The legal framework governing the institution of marriage in this country does not presently allow members of the LGBTQ+ community to marry the person of their choice.
  • Couple cannot protect the family, and matters like adoption, opening a joint bank account or admission of children remain uncertain on account of failure of the law to recognise same sex unions.
• Section 4 of the Special Marriage Act:
  • It although permits any two persons to solemnize a marriage, the subsequent conditions in sub Section (c) therein restrict its application only to males and females. 
• Counter to global challenges:
  • Legalizing same-sex marriage in India would run counter to a number of global challenges. 
    • Recently, Singapore scrapped criminal penalties for gay sex, but stopped short of allowing marriage. 

Way Forward

• NALSA v. Union of India:
  • Here, Supreme Court categorically held that 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.
• The issue is a sequel to Navtej Singh Johar (decriminalising Section 377 of IPC) (2018) and K S Puttaswamy (right to privacy) (2017) judgements.
  • Same sex marriage is a continuation of this constitutional journey. 
  • 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. 
    • So thereby, the right to marry a person of one's choice should extend to LGBTQ+ citizens, as well.  

The Special Marriage Act of 1954

• All marriages in India can be registered under the respective personal law Hindu Marriage Act, 1955, Muslim Marriage Act, 1954, or under the Special Marriage Act, 1954.
• The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for civil marriage for people of India and all Indian nationals in foreign countries, irrespective of religion or faith followed by either party.
• The couples have to serve a notice with the relevant documents to the Marriage Officer 30 days before the intended date of the marriage.
• Applicability: 
  • Any person, irrespective of religion. 
  • Hindus, Muslims, Buddhists, Sikhs, Christians, Parsis, or Jews can also perform marriage under the Special Marriage Act, 1954.
  • Inter-religion marriages are performed under this Act.
  • This Act is applicable to the entire territory of India and extends to intending spouses who are both Indian nationals living abroad.
  • Indian national living abroad.