Legalising Same-sex marriages in India and associated challenges  – Explained, pointwise

Introduction

The Supreme Court received petitions to allow same-sex marriage under the Special Marriage Act. The court sent notices to the government and took over similar cases that were already in other high courts. In response to it, the government filed an affidavit expressing its view on the matter.

At the same time, the Supreme Court of India has referred the petitions seeking legal validation of same-sex marriages to a five-judge constitutional bench for adjudication. Same-sex marriage is a sensitive issue in India, with the potential to pose legal, socioeconomic, and ethical concerns. 

What is same-sex marriage? 

A same-sex marriage is a legal union between two people of the same gender. The government usually recognises it and grants them the same legal rights and protections as heterosexual couples. It is also known as homosexual marriage or gay marriage. 

Note: LGBTQ+ stands for lesbian, gay, bisexual, transgender, queer (or sometimes questioning), and others. The “plus” represents other sexual identities including pansexual and Two-Spirit. 

What is the global acceptance of same-sex marriages? 

As of 2023, marriage between same-sex couples is legally performed and recognised in 34 countries, with the most recent being Andorra. Most countries in North and South America and Europe have legalised same-sex marriage.

About the case and Centre’s affidavit on legalising Same-sex marriages in India 

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

What are the arguments in favour of legalising same-sex marriages?

There are several arguments in favour of legalising same-sex marriages in India: 

Providing Equality: Legalising same-sex marriages is crucial in promoting equality and non-discrimination. All individuals, regardless of their sexual orientation or gender identity, should have the right to marry and have their relationships recognised under the law.

This is supported by Articles 14 and 15 of the constitution, which prohibits discrimination on the basis of sex. The Supreme Court has even interpreted “sex” to include “sexual orientation” in the Navtej Singh Johar (2018) case. Thus, denying same-sex couples the right to marry is a clear case of discrimination based on sexual orientation. 

Ensure Right to privacy: The right to privacy encompasses the ability to make choices regarding one’s body and intimate relationships. This applies to same-sex couples as well. The Supreme Court’s Puttaswamy verdict in 2017 acknowledged this as part of the right to life and liberty under Article 21 of the Constitution. This right should be respected without any discrimination or persecution towards individuals. 

Enlarge Human Rights: Same-sex marriage is a human rights issue. The United Nations has recognised the importance of LGBT (lesbian, gay, bisexual, and transgender) rights and has called for the protection of the human rights of LGBT individuals, including the right to marry. 

Love and commitment: Same-sex couples are just as capable of loving and committing to each other as heterosexual couples. They deserve to have their love and commitment recognized and protected under the law. 

Provide Legal protection: Legalising same-sex marriages would provide legal protection and recognition for same-sex couples, including access to benefits such as inheritance, joint ownership of property, and healthcare. 

Promote Social acceptance: Legalising same-sex marriages would promote social acceptance of LGBT individuals and relationships, and help reduce discrimination and stigma. 

What are the arguments against legalising same-sex marriages? 

Some arguments against legalising same-sex marriages in India include: 

Against religious and cultural beliefs: As different from many liberal democracies, in India, aspects of marriage, succession and adoption are governed by religious personal laws. As far as marriage is concerned, the Hindu, Christian and Shariat laws, in addition to customary law, govern religious marriages with heterosexual couples alone. 

Against the definition of marriage: The traditional definition of marriage is between a man and a woman, and changing this definition could have negative consequences for society. 

Marriage is a matter of policy: The Union government, in its affidavit to the Supreme Court, has argued that recognizing same-sex marriages could cause havoc in the system of personal laws. The government has also claimed that marriage is a matter of policy to be decided by Parliament and the executive alone. 

Children’s rights: Some argue that children are better off being raised by opposite-sex parents, and that legalising same-sex marriages would harm the welfare of children. 

Has legal complications: Legalising same-sex marriages could lead to legal complications. For example, issues related to adoption and child custody still be there.  

Create social unrest: Same-sex marriage is not widely accepted in Indian society and legalising it could create social unrest and have the potential to disrupt social norms and values. 

What are the challenges in legalising same-sex marriages? 

There are several challenges in legalising same-sex marriages in India, including: 

Legal hurdles: The current legal framework in India does not recognise same-sex marriages, and amending the existing laws could be a lengthy and difficult process. 

Absence of SC’s direction in civil rights issues: In 2018, the Supreme Court ruled that being gay is no longer illegal, but they did not talk about civil rights issues. As a result, while same-sex partnerships are legal, civil rights like marriage, inheritance, and adoption are not guaranteed to the lesbian, gay, bisexual, transgender, queer, and intersex populations. 

Cultural and religious attitudes: India is a culturally and religiously diverse country, and many people still hold conservative beliefs about same-sex relationships, which could make legalising same-sex marriages a challenging task. 

Lack of political will: Some politicians may be hesitant to support the legalisation of same-sex marriages due to fear of losing support from conservative voters. 

Social stigma and discrimination: Despite efforts to promote LGBT rights, many LGBT individuals still face discrimination and stigma in Indian society. This could create barriers to legalising same-sex marriages. 

Public opinion: While attitudes towards LGBT rights have been changing in India, many people still do not support same-sex marriages. This could make it difficult for politicians to pass legislation legalising same-sex marriages. 

What should be done? 

Recognition by the government: The government needs to recognise that denying same-sex couples the right to marry is a violation of their constitutional rights to equality and privacy. The government needs to acknowledge that the right to marry is not just a policy matter but an important legal and social issue that requires attention and action. 

Amendment in the Special Marriage Act: This will require changes in language to make it gender-neutral and remove references to the terms “husband” and “wife.” The courts can either accept this reinterpretation of the Act or declare a right to same-sex marriage and direct the state to recognise them under the Act. 

Expand the institution of marriage: The reform of the Hindu Marriage Act, 1955 to include self-respect marriages is a significant step towards dismantling caste-based practices within the institution of marriage. Likewise, it is crucial to recognise same-sex marriage and expand the institution of marriage to include all gender and sexual identities.  

Address the concerns of opponents: The government needs to address the concerns raised by opponents of same-sex marriage. The argument that same-sex marriage disrupts the sanctity of marriage is a religious one and does not apply to secular laws like the Special Marriage Act. Similarly, the argument that same-sex marriage goes against prevailing social values is not a valid reason to deny constitutional rights to a minority group. 

Education and awareness campaigns: There needs to be a shift in societal attitudes towards same-sex marriage. Education and awareness campaigns need to be launched to help people understand that same-sex relationships are natural and normal. The media can play an important role in promoting positive representations of LGBTQ+ individuals and couples.

Sources: LiveMint, Business Standard, The Hindu and Indian Express 

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