The Hindu Editorial Analysis- 18th October 2023 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

Law and custom

Why in News?

The Supreme Court of India’s refusal to accord legal recognition to marriages between persons of the same sex is a huge legal setback to the queer community in the country.

What is the Observation of the Supreme Court (SC)?

• Against Constitutional Validity:
  • A 5-judge Constitution Bench led by the Chief Justice of India ruled 3:2 against granting constitutional validity to same-sex marriages.
• Domain of Parliament:
  • The Chief Justice stated that the court cannot modify the Special Marriage Act (SMA) 1954 to include same-sex couples. This responsibility lies with the Parliament and state Legislature to enact relevant laws.
• Other Observations:
  • The Supreme Court acknowledged that the concept of marriage is not rigid.
  • It affirmed that individuals from the queer community possess an equal right and freedom to form a "union."
  • All five judges unanimously agreed that there is no fundamental right to marry as per the Constitution.

What is the Legality of Same-Sex Marriages in India?

• Marriage not explicitly a fundamental or constitutional right: The Indian Constitution does not explicitly identify the right to marry as either a fundamental or constitutional right.
• Statutory Right: Instead, it is acknowledged as a right granted by statutes or laws.
• Regulation through statutes: Marriage is governed by various legislative acts.
• Development of fundamental right status through judicial decisions: The recognition of marriage as a fundamental right has evolved primarily through rulings made by India's Supreme Court.
• Binding nature of Supreme Court decisions: These declarations of legal principles by the Supreme Court are obligatory and authoritative for all courts across India according to Article 141 of the Constitution.
• Marriage as a Fundamental Right (Shafin Jahan v. Asokan K.M. 2018):
  • In this case, the Supreme Court (SC) emphasized the significance of the right to marry the person of one's choice, asserting it as integral to Article 21 of the Constitution.
  • The court drew attention to Article 16 of the Indian constitution, which prohibits discrimination based on various factors, including religion, race, caste, sex, and place of birth.
  • The right to marry was underscored as a fundamental right intrinsically linked to the liberty guaranteed by the Constitution.
  • Matters of belief and faith, encompassing the freedom to make personal decisions central to one's pursuit of happiness, were deemed at the heart of constitutional liberty.
• LGBTQ Community Entitled to all Constitutional Rights (Navjet Singh Johar v. Union of India 2018):
  • The SC declared that individuals belonging to the LGBTQ community possess the same constitutional rights as all other citizens.
  • It affirmed that LGBTQ members are entitled to equal citizenship and the "equal protection of the law."
  • The court stressed the equal treatment of LGBTQ individuals under the Constitution, implying that they should enjoy all the rights and liberties safeguarded by it.

What are the Arugments in Favour of Same Sex Marriage?

• Equal Rights and Family Formation:
  • All individuals, regardless of sexual orientation, have the right to marry and create families.
  • Same-sex couples should possess identical legal rights and protections as heterosexual couples.
• Discrimination and Dignity:
  • Non-recognition of same-sex marriage constitutes discrimination against LGBTQIA+ couples, undermining their dignity.
• Strengthening Families and Communities:
  • Marriage offers both social and economic advantages to couples and their families, including those in same-sex unions.
• Cohabitation as a Fundamental Right:
  • The Chief Justice of India affirmed that cohabitation is a fundamental right, emphasizing the government's responsibility to acknowledge the societal impact of such relationships.
• Complexity of Gender:
  • According to the Supreme Court of India, biological gender is not an absolute determinant of one's gender identity. The concept of man or woman transcends mere anatomy.
• Global Acceptance:
  • Many countries worldwide recognize same-sex marriage, and withholding this right in a democratic society contradicts global principles.
  • Same-sex marriage is legally recognized in 32 countries.

What are the Arugments Against Same Sex Marriage?

• Religious and Cultural Beliefs: Many religious and cultural groups believe that marriage should only be between a man and a woman.
  • They argue that changing the traditional definition of marriage would go against the fundamental principles of their beliefs and values.
• Procreation: Some people argue that the primary purpose of marriage is procreation, and that same-sex couples cannot have biological children.
  • Therefore, they believe that same-sex marriage should not be allowed because it goes against the natural order of things.
• Legal issues: There are concerns that allowing same-sex marriage will create legal problems, such as issues with inheritance, tax, and property rights.
  • Some people argue that it would be too difficult to change all the laws and regulations to accommodate same-sex marriage.
• Issues with Adoption of Childrens: When queer couples adopt children, it can lead to societal stigma, discrimination, and negative impacts on the child's emotional and psychological well-being, especially in Indian society where acceptance of the LGBTQIA+ community is not universal.

What Could be the Way Forward?

• Awareness Promotion: The main goal of awareness campaigns is to enhance public understanding and acceptance of all sexual orientations within the LGBTQIA+ community.
• Legal Adjustments: Proposed changes to the 1954 Special Marriage Act seek to permit same-sex couples to legally wed, granting them equivalent rights and benefits to heterosexual couples. Simultaneously, contracts resembling marital agreements would be established to ensure comparable rights for homosexual individuals.
• Dialogue and Religious Engagement: Initiating conversations with religious leaders and communities can help bridge the gap between conventional beliefs and contemporary perspectives on same-sex relationships.
• Legal Obstacles: The Indian LGBTQIA+ community may legally challenge existing laws that obstruct same-sex marriage on constitutional grounds. These legal challenges can set a legal precedent, paving the way for the legalization of same-sex marriage.
• Collaborative Effort: Legalizing same-sex marriage necessitates cooperative involvement from multiple stakeholders, including the LGBTQIA+ community, government, civil society, and religious leaders. By working together, a more inclusive society can be created, ensuring everyone's right to love and marry without regard to gender.