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Source: The post is based on the article “It’s Your Job, Milords – Legal recognition for same-sex marriage is a natural consequence of the right to privacy. So, Supreme Court not legislature is the correct forum to grant this right” published in The Times of India on 20th May 2023.
Syllabus: GS 2 – Mechanisms, Laws, Institutions & Bodies Constituted for Protection & Betterment of Vulnerable Sections
News: The article discusses the issues concerning same sex marriages.
What has been the stand of the Supreme Court on same sex marriages?
There are two important judgments of the SC in this regard – 1) Navtej Singh Johar (2018), which struck down Section 377 IPC and 2) KS Puttaswamy (2017), which recognized the right to privacy as being a fundamental right.
Hence, legal recognition of same-sex unions/marriages comes as a continuation of these judgements. Whereas, denying it is a direct infringement of their right to privacy.
However, SC has reserved its judgment on legal recognition of same sex marriage.
An important question arises whether the Parliament can intervene into the recognition of same-sex marriages even if the court has recognized it.
If the answer is yes, then legislature can by law reverse the judicial recognition of the right to same-sex relationships.
However, if it is accepted that the legal recognition of same-sex marriages is only a natural consequence of their right to privacy, then the state would not be competent to make a policy decision in this area.
Moreover, if the fundamental right to embrace one’s sexual orientation is considered a part of the fundamental right to privacy, then leaving the decision to recognize same-sex marriage on to the government would not serve the purpose.
This is because the government does not support this idea and it prioritizes social morality over constitutional morality.
What are the Constitutional provisions that support same-sex marriage?
The Constitution ensures every citizen the right to equality with the right against discrimination on any ground including sex and sexual orientation.
Therefore, as per the Constitution, the state cannot deny its citizens the right to legal recognition of marriages on the only ground of varied sexual orientation.
Must Read: Legalising Same-sex marriages in India and associated challenges – Explained
What can be the way forward for same sex marriages in India?
The legal recognition of same-sex marriages will not only guarantee the couple rights for adoption, surrogacy, procreation but will also ensure dignity to their children.
Further, the institution of marriage is equally important to individuals regardless of their gender identities.
Moreover, Justice DY Chandrachud also said that the Supreme Court must not risk losing its role as a leading institution in upholding constitutional values. Else, the erosion of its authority would pose a significant threat to democracy.
Therefore, until the Parliament makes the law and recognizes the same-sex marriage, it is better to have expectations from the SC for its recognition.
