Marriage rights of same-sex couples: A strong case exists for marriage equality

Source: The post is based on the article “A strong case exists for marriage equality” published in The Hindu on 31st December 2022. 

Syllabus: GS2- Vulnerable sections of the population.

Relevance: Issues related to the marriage rights of same-sex couples.

News: A petition for marriage rights of same-sex couples under the Special Marriage Act, 1954 is pending before the Supreme Court of India. 

What are the important aspects of LGBTQ community’s legal battle for their rights? 

An important legal aspect is whether the law criminalising sexual conduct has been violative of the right to privacy or the right to equality.  

In the former, one’s sexual orientation was held intrinsic to privacy and personal liberty. In the latter, equal treatment of same-sex couples with those of heterosexual couples was considered paramount.  

The privacy approach needs non-interference by state and equality approach requires the state to take positive steps to ensure equal treatment in all spheres of life. 

If an equality approach is preferred, other rights like, prohibiting employment discrimination, rights in marriage, adoption should be considered for LGBT community. 

What is the practice followed in other countries on rights of LGBTQ community? 

The European Court of Human Rights in 1981 struck down the offence of buggery in Northern Ireland as violative of personal liberty. It thus adopted a privacy approach. 

Many European countries have not yet granted marriage rights to same-sex couples and only recognised civil partnerships. 

In South Africa, the judiciary has compared the privacy and equality approaches in a case dealing with the decriminalisation of homosexuality. It has opined that the equality approach was enabling and granting greater protection to homosexual persons.  

The constitutional court of Africa in one of its decisions has prohibited the state from interfering in the right to marriage. 

The U.S. has decriminalised same-sex relations granted marriage equality under the due process of law. The focus was thus on personal liberty. 

What has been the approach followed by the Indian judiciary? 

India adopted the South African approach in Navtej Singh case (2018). The top court decriminalised homosexuality. The court opined that section 377 created an unreasonable classification for same-sex persons under Article 14. It is also violative of bodily autonomy under Article 21.  

Further, sexual orientation implicated both negative and positive obligations on the state.  

It called for a recognition of rights to ensure the true fulfilment of same-sex relationships. Even in NALSA judgement, the Court acknowledged the importance of sequential rights arising from ‘gender identity’. 

What is the way forward for marriage rights for same-sex couples? 

Strong equality-based reasoning provided by higher courts means that not providing marriage rights for same sex couples can not be justified.  

Marriage equality for same-sex couples in India should not be left to the legislature. This would be significant in the Indian context where marriage holds a special cultural and religious value.  

Denial of marriage equality may reinforce the stigma faced by same-sex couples.