ForumIAS announcing GS Foundation Program for UPSC CSE 2025-26 from 10th August. Click Here for more information.
Contents
- 1 Introduction
- 2 What is the detailed SC judgement on same-sex marriage?
- 3 What arguments were put in favour of legalisation of same sex marriage in India?
- 4 What arguments were put against the legalisation of same sex marriage in India?
- 5 What should be the way forward for the same-sex couples in India?
- 6 What are the past developments regarding the recognition of LGBTQI rights in India?
| For 7PM Editorial Archives click HERE → |
Introduction
The five-judge Constitutional Bench of the Supreme Court headed by Chief Justice of India D Y Chandrachud has refused to grant legal status to same-sex marriage in India. There were two views in the judgement on some of the key questions in the case. The judgement given by Justices S Ravindra Bhat, Hima Kohli, and P S Narasimha formed the majority. The judgement of CJI Chandrachud and Justice Sanjay Kishan Kaul formed the minority.
Highlights of the Judgement1.Right to marriage is not a fundamental right. |
What is the detailed SC judgement on same-sex marriage?
In the same-sex marriage case, four (4) key questions were framed. While the majority and minority judgements agreed in their verdict on some questions, there were disagreements on other questions.
| Key Question | Minority view (2 Judges) | Majority view (3 Judges) | |
| The fundamental right to marry The petitioners wanted the SC to declare marriage as a fundamental right as the SC declared Privacy as a fundamental right in 2017. | Both the majority and minority views rejected the question of declaring marriage as a fundamental right. Minority view’s rationale for rejection- Marriage has attained the social and legal significance only because the state has regulated it through law. Majority view’s rationale for rejection- Marriage is important for an individual but cannot be considered fundamental for his existence. | ||
| Re-Interpretation of Special Marriage Act (SMA) 1954 The petitioners had asked the SC to interpret the word ‘marriage’ in SMA. They wanted marriage to be defined as between “spouses” instead of “man and woman”. The petitioners had also asked for striking down provisions of the SMA that are gender-restrictive.
| Both the majority and minority views rejected the demands of the petitioners for the re-interpretation of Special Marriage Act (SMA) 1954. Minority view’s rationale for rejection- The re-interpretation of SMA 1954 would amount to entering into the realm of the legislature. Majority view’s rationale for rejection- At the time of enactment of the law, the parliament intended it to be applicable only for heterosexual couples belonging to different faiths. | ||
| Queer couples’ right to adopt a child The petitioners had argued that the guidelines of the Central Adoption Resource Authority (CARA), which does not allow unmarried couples to jointly adopt children, is discriminatory against queer couples as they cannot legally marry. | Minority View- Strike down the discriminatory provisions of the CARA regulation. Rationale for striking down- Reinforces the disadvantage already faced by the queer community. Law cannot make an assumption on good and bad parenting based on the sexuality of individuals. | Majority view- Agreed with the minority view that CARA provisions are discriminatory. But these provisions cannot be stuck down by the judiciary. Rationale for not striking down by the judicial pen- The legislature and executive only should remove these discriminatory provisions. | |
| Civil unions for queer couples Civil Union was considered as the halfway approach before granting complete marriage rights. US Supreme Court had adopted the same approach of recognising civil unions first before granting complete marriage rights. However the petitioners argued that civil unions are not an equal alternative to the legal and social institution of marriage. The petitioners argued that relegating non-heterosexual relationships to civil unions would send the queer community a message that their relationships are inferior to those of heterosexual couples | Minority View- Favoured the civil union and prescribed it as a ‘choice’ for the queer community. Located the right to form Civil Unions within the fundamental right to freedom of speech and expression. Committee chaired by the Cabinet Secretary should be constituted to set out the rights which would be available to queer couples in civil unions. | Majority View- Agreed with the minority view. But judiciary should not prescribe civil unions as a ‘choice’ to queer couples.
The majority opinion said that the state (legislature,executive) should facilitate this choice and that too, only for those who wish to exercise it. | |
What arguments were put in favour of legalisation of same sex marriage in India?
Mentioned below are the arguments that were put in favour of legalisation of Same Sex Marriage in India-
Provides Equality to Homosexuals- Legalisation of same-sex marriages is crucial in promoting equality and non-discrimination. Articles 14 and 15 of the constitution prohibits discrimination on the basis of sex. The Supreme Court in the Navtej Singh Johar case (2018), interpreted “sex” to include “sexual orientation”. Denial of the right to marriage to the same-sex couples, is discrimination against them based on their sexual orientation.
Ensures Right to privacy- The Supreme Court in the K.S. Puttaswamy case (2017), held the right to privacy as a fundamental right (Under Art 21). The right to privacy encompasses the ability to make choices regarding one’s body and intimate relationships. Legalisation of same sex marriage would ensure the homosexual couple’s right to privacy.
Provides Legal protection- Legalisation of same sex marriage will provide legal protection to homosexual couples under laws that guarantee rights such as wages, gratuities, adoption, surrogacy, inheritance, joint ownership of property, and healthcare.
Enlargement of 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 their right to marry.
Significance to the Homosexual Relationship- The legalisation of same-sex marriage will provide the same-sex relationships a sense of significance, direction, and identity.
Promotes Social acceptance- Legalisation of same-sex marriages would promote social acceptance of LGBT individuals and relationships. It would help to reduce social discrimination and stigma.
Transformative constitutionalism and progressive realisation of rights- The legalisation of same-sex marriage will be a step further in the domain of transformative constitutionalism and progressive realisation of the minority rights. SC of India invoked the aforesaid principles of transformative constitutionalism in the Navtej Singh Johar Case (2018) which invalidated Sec. 377 of the IPC.
Granting marriage equality does not require unprecedented move from SC- Both the basic structure doctrine and the right to privacy verdict involved far more substantial and extensive cases of interpretation of the constitution by the SC. Legalisation of same-sex marriage can be done within that extensive interpretation framework evolved by SC.
Homosexuality not limited to urban and elite areas- The ones who argue for same sex marriage, claim that homosexuality is not just limited to urban areas. A major percentage of homosexuals reside in rural areas and town. According to them, homosexuals constitute around 7-8% of the country’s population.
Marriage is an evolving institution- According to the proponents of same-sex marriage, marriage is an evolving institution according to the prevelant social values of the times. Gandharva marriages based on mutual consent, Daiva Marriages where girl was married to a teacher and Arsha marriages where women were married to rishis, have all been the result of the prevelant social values of those times. The demand of modern times is same sex marriage. Hence it should be allowed.
Global Acceptance of same sex marriage- Same-sex marriage is legal in 34 countries around the world. Denial of this right to individuals in a democratic society goes against the global principles.
Right to Marry as a Human Right- Under the UDHR, 1948, the right to marry is a human right. Article 16 provides that, “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.”
Logical next-step after Decriminalisation of Section 377- It is logical to assume that in a situation when a couple are having a physical relationship, they may progress to a long-term relationship, including that of marriage.
What arguments were put against the legalisation of same sex marriage in India?
However, the central government and various other advocates put several arguments against the legalisation of same sex marriage in India. These are mentioned below-
Against religious and cultural beliefs- In India, aspects of marriage, succession and adoption are governed by religious personal laws. These marriage laws and customs are for heterosexual couples only. Hence, legalisation of same-sex marriage goes against the Indian religious and cultural beliefs.
Legal complications- Legalisation of same-sex marriages could lead to legal complications in issues related to adoption, child custody, inheritance and taxes.
Children’s rights- The opponents have argued that children are better off being raised by heterosexual parents. In Indian society, where acceptance of the LGBTQIA+ community is not universal, it can lead to societal stigma, discrimination and affect the mental health of adopted children of LGBTQIA+ couples.
Marriage is a matter of public policy and must be decided by the parliament- Marriage is a matter of public policy and must be decided by the Parliament and the executive alone. The legalisation of same sex marriage, would also require changes in the age of consent, prohibition of bigomy, judicial and divorce acts.
Can create social unrest- Same-sex marriage is not widely accepted in Indian society. Legalisation of homosexual marriage could create social unrest, and disrupt social norms and values.
Urban-Elitist demand- The demand for same-sex marriage is only an urban-elitist demand. It is not the demand of the rural and semi urban areas.
Against the natural order of things- 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.
What should be the way forward for the same-sex couples in India?
The same-sex couples have been disappointed the verdict of SC which declined to grant legal status to same sex couples. It has left it on the legislature and executive to grant legal status to same-sex couples. However, the following steps must be taken in the meantime-
Centre must immediately form the committee under cabinet secretary- As directed by the SC, the centre must immediately form the committee under cabinet secretary to provide civil union rights and other rights like inheritance, adoption etc. to homosexual couples.
Gender just family laws- The legislature must improve Indian family law to make it more inclusive, gender-just and non-discriminatory.
Raise awareness- The purpose of awareness campaigns is to promote equality and acceptance of all sexual orientations and expand public opinion about the LGBTQIA+ community.
Dialogue and engagement- Engaging in a dialogue with religious leaders and communities can help bridge the gap between traditional beliefs and modern attitudes towards same-sex relationships. The engagement of queer couples with the politicians at the local, state and national level must be stepped up.
Govt must aim for Legal reforms- Govt must aim to make amendments in the Special Marriage Act,1954 so that the demands of the same-sex couples are fulfilled at the earliest. The legislature must also try to fulfill the long standing demands of horizontal reservations for transgenders, anti-disrimination laws and equal access to marriage.
What are the past developments regarding the recognition of LGBTQI rights in India?
Section 377 IPC criminalised sex between non-heterosexual couples punishable with 10 years imprisonment. In 2009, the Delhi High Court declared Section 377 as unconstitutional in Naz Foundation Case.
This was set aside in Suresh Kumar Koushal Case by the Supreme Court in 2013, but ultimately upheld in Navtej Singh Johar Case in 2018.
The Court had also held in the NALSA Judgment (2014) that persons are entitled to identify their own gender. They may be born as males but if they want to identify as females or transgenders, they are entitled to do so.
The Transgender Persons (Protection of Rights) Act, 2019 was passed by Parliament which provides the procedure for changing one’s gender and protection against discrimination in diverse establishments, private or state.
| Read More- The Hindu, The Indian Express UPSC Syllabus- 1.Structure, Organization and Functioning of the Executive and the Judiciary. 2.Mechanisms, Laws, Institutions and Bodies constituted for the Protection and Betterment of these Vulnerable Sections. 3.Salient features of Indian Society, Diversity of India and Social empowerment |
