About legalising same-sex marriages: Inaction and intervention: On the handling of social issues

Source: The post is based on the following articles

“Inaction and intervention: On the handling of social issues” published in The Hindu on 15th March 2023.

“Express View on Centre’s affidavit on same-sex marriage” published in the Indian Express on 15th March 2023.

“Three Problems With GoI’s View On Same-Sex Marriage” published in The Times of India on 15th March 2023.

Syllabus: GS – 2: Mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections.

Relevance: About legalising same-sex marriages.

News: Recently, the Centre has filed an affidavit to Supreme Court mentioning the issues in legalising same-sex marriages. The apex court has now referred the matter to a Constitution Bench of five judges to decide the issue of granting legal recognition to same-sex marriages.

About the case and Centre’s affidavit on same-sex marriages

According to the Centre, to legalise same-sex marriages various laws and provisions have to be amended. This includes religious laws such as the Hindu Marriage Act, Special Marriage Act, Citizenship Act and Foreign Marriage Act.

What are the issues in the centre’s affidavit on legalising same-sex marriages?

a) Centre’s argument that Court never accepted same-sex marriages and only decriminalised their sexual intercourse is a reflection of government’s narrow vision. This is because, the SC itself in Navtej Johar case said that “History owes an apology to the members of this community and their families, for the delay” b) People’s belief in marriage’s sacrament nature cannot deny equal status to same-sex marriages, c) The Centre’s traditional notion of marriage is missing the foundation of love, respect and recognition between partners, which holds the relationship together and builds community around it, d) A person’s fundamental rights cannot be debated against reducing government burden of too many amendments, e) Ever since the Naz Foundation judgement of Delhi High Court in 2009, people in same-sex relationships are living together as married couples and raising children whether born to either party, or adopted. Now they are just seeking stability and recognition.

What should be done on the question of legalising same-sex marriages?

Ensure equality: Before addressing the question of legalising same-sex marriages, the centre should ensure that no civil rights available to married heterosexual couples ought to be denied to those who belong to the same gender.

The court can determine the time limit: Taiwan is the first Asian country to permit same-sex marriages. The constitutional court of Taiwan directed the government to act within a timeframe to amend its laws. A similar approach can be followed in India as well.

Need for responsive government: It is the work of the Legislature to bring far-reaching changes that may impact the personal laws of all religions. So, instead of arguing that legalising same-sex marriages should come from judicial intervention or legislative action, the government should frame a law on the subject.

Else, the Legislative inaction on burning social issues will legitimise and invite judicial intervention.

Empower the community: Instead of playing moral police, the State should work on empowering the community with equal opportunities. This is because the changes to societal structures and attitudes take time.

Work with experts for amendments: Most of the amendments are simple, merely require replacing the term ‘husband’ or ‘wife’ with the gender-neutral term ‘spouse’. However, certain gender-specific terms, such as dowry, domestic violence, maintenance and alimony require closer examination and deliberation with experts and community representatives.

Overall, the centre should understand that decriminalisation does not mean only their right to have sex alone. But it was also about the right to live with dignity and equality as full members of society.