{"id":220554,"date":"2022-12-31T19:30:59","date_gmt":"2022-12-31T14:00:59","guid":{"rendered":"https:\/\/blog.forumias.com\/?p=220554"},"modified":"2022-12-31T19:30:59","modified_gmt":"2022-12-31T14:00:59","slug":"marriage-rights-of-same-sex-couples-a-strong-case-exists-for-marriage-equality","status":"publish","type":"post","link":"https:\/\/forumias.com\/blog\/marriage-rights-of-same-sex-couples-a-strong-case-exists-for-marriage-equality\/","title":{"rendered":"Marriage rights of same-sex couples: A strong case exists for marriage equality"},"content":{"rendered":"\n

Source<\/span><\/b>: The post is based on the article <\/span>\u201c<\/span><\/b>A strong case exists for marriage equality<\/span><\/b>\u201d <\/span><\/b>published in<\/span> The Hindu <\/span><\/b>on <\/span>31st December 2022<\/span><\/b>.<\/span>\u00a0<\/span><\/p>\n

Syllabus: <\/span><\/b>GS2- Vulnerable sections of the population.<\/span><\/p>\n

Relevance<\/span><\/b>: Issues related to the marriage rights of same-sex couples.<\/span><\/p>\n

News<\/span><\/b>: <\/span>A petition for marriage rights of same-sex couples under the <\/span>Special Marriage Act, 1954<\/span><\/b> is pending before the Supreme Court of India.<\/span>\u00a0<\/span><\/p>\n

What are the important aspects of LGBTQ community\u2019s legal battle for their rights?<\/span><\/b>\u00a0<\/span><\/h5>\n

An important legal aspect is whether the law criminalising sexual conduct has been violative of the <\/span>right to privacy or the right to equality<\/span><\/b>.\u00a0<\/span>\u00a0<\/span><\/p>\n

In the former, one\u2019s s<\/strong><\/span>exual orientation<\/span><\/b> was held <\/span>intrinsic to privacy and personal liberty<\/span><\/b>. In the latter, <\/span>equal treatment<\/span><\/b> of same-sex couples with those of heterosexual couples was considered paramount.\u00a0<\/span>\u00a0<\/span><\/p>\n

The privacy approach<\/strong> needs <\/span>non-interference by state<\/span><\/b> and equality approach requires the state to take <\/span>positive steps<\/span><\/b> to ensure equal treatment in all spheres of life.<\/span>\u00a0<\/span><\/p>\n

If an equality approach<\/strong> is preferred, other rights like, prohibiting employment discrimination, rights in marriage, adoption should be considered for LGBT community.<\/span>\u00a0<\/span><\/p>\n

What is the practice followed in other countries on rights of LGBTQ community?<\/span><\/b>\u00a0<\/span><\/h5>\n

The <\/span>European Court of Human Rights in 1981<\/span><\/b> struck down the offence of buggery in Northern Ireland as violative of <\/span>personal liberty<\/span><\/b>. It thus adopted a <\/span>privacy approach<\/span><\/b>.<\/span>\u00a0<\/span><\/p>\n

Many European countries have not yet granted <\/span>marriage right<\/span><\/b>s to same-sex couples and only recognised civil partnerships.<\/span>\u00a0<\/span><\/p>\n

In South Africa, the judiciary has compared the <\/span>privacy and equality approache<\/span><\/b>s in a case dealing with the decriminalisation of homosexuality. It has opined that the equality approach was <\/span>enabling<\/span><\/b> and granting greater protection to homosexual persons.\u00a0<\/span>\u00a0<\/span><\/p>\n

The constitutional court of Africa in one of its decisions has prohibited the state from interfering in the <\/span>right to marriage<\/span><\/b>.<\/span>\u00a0<\/span><\/p>\n

The U.S. has decriminalised same-sex relations granted marriage equality under the<\/span> due process of law<\/span><\/b>. The focus was thus on <\/span>personal liberty<\/span><\/b>.<\/span>\u00a0<\/span><\/p>\n

What has been the approach followed by the Indian judiciary?<\/span><\/b>\u00a0<\/span><\/h5>\n

India adopted the South African approach in <\/span>Navtej Singh case (2018)<\/span><\/b>. The top court decriminalised homosexuality. The court opined that <\/span>section 377<\/span><\/b> created an <\/span>unreasonable classification<\/span><\/b> for same-sex persons under Article 14. It is also violative of <\/span>bodily autonomy under Article 21<\/span><\/b>.\u00a0<\/span>\u00a0<\/span><\/p>\n

Further, sexual orientation implicated both <\/span>negative and positive obligations<\/span><\/b> on the state.\u00a0<\/span>\u00a0<\/span><\/p>\n

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 <\/span>sequential rights <\/span><\/b>arising from <\/span>\u2018gender identity<\/span><\/b>\u2019.<\/span>\u00a0<\/span><\/p>\n

What is the way forward for marriage rights for same-sex couples?<\/span><\/b>\u00a0<\/span><\/h5>\n

Strong <\/span>equality-based reasoning<\/span><\/b> provided by higher courts means that not providing marriage rights for same sex couples can not be justified.\u00a0<\/span>\u00a0<\/span><\/p>\n

Marriage equality<\/span><\/b> 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 <\/span>special cultural and religious value<\/span><\/b>.\u00a0<\/span>\u00a0<\/span><\/p>\n

Denial of marriage equality may reinforce the stigma faced by same-sex couples.<\/span>\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

Source: The post is based on the article \u201cA strong case exists for marriage equality\u201d published in The Hindu on 31st December 2022.\u00a0 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… Continue reading Marriage rights of same-sex couples: A strong case exists for marriage equality<\/span><\/a><\/p>\n","protected":false},"author":10311,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"footnotes":""},"categories":[9],"tags":[212,10498],"class_list":["post-220554","post","type-post","status-publish","format-standard","hentry","category-public","tag-gs-paper-2","tag-the-hindu","entry"],"jetpack_featured_media_url":"","views":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts\/220554","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/users\/10311"}],"replies":[{"embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/comments?post=220554"}],"version-history":[{"count":0,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/posts\/220554\/revisions"}],"wp:attachment":[{"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/media?parent=220554"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/categories?post=220554"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/forumias.com\/blog\/wp-json\/wp\/v2\/tags?post=220554"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}