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Context: The Centre has briefed the Supreme Court that it is opposing petitions asking for the legal recognition of same-sex unions, arguing that the "legislative understanding of marriage in the Indian statutory and personal law regime" only refers to unions between biological men and women and that any interference "would cause a complete chaos with the delicate balance of personal laws in the country and in accepted social norms".
- The Centre argued that any "recognised deviation...can arise only before the authorized legislature," and urged the court to refer the matter to Parliament. Also, it stated that "the Petitioners cannot claim a basic right for same-sex marriage to be recognised under the laws of the country" despite the decriminalisation of Section 377 of the Indian Criminal Code (IPC).
- The affidavit was submitted by the Union Government before the Supreme Court in response to several petitions that asked for the legal recognition of same-sex unions. In November 2022 and in January 2023, the Supreme Court had given notifications regarding these petitions.
Same-Sex marriage around the Globe
- Same-sex marriage is the marriage of two people of the same sex or gender.
- Same-sex unions were also known in Ancient Greece and Rome, ancient Mesopotamia, some regions of China, and at certain times in ancient European history.
- As of 2022, marriage between same-sex couples is legally performed and recognized in 33 countries including Argentina, Australia, Brazil, Canada, France, Germany, New Zealand, South Africa, Spain, Sweden, Switzerland, United Kingdom, United States, etc.
- Adoption rights are generally not covered, though most countries with same-sex marriage allow those couples to jointly adopt as other married couples can.
- 34 countries have definitions of marriage that prevent marriage between couples of the same sex.
- Some other countries have constitutionally mandated Islamic law, which is generally interpreted as prohibiting marriage between same-sex couples.
- In some countries, homosexuality itself is criminalized.
- The first law providing for marriage equality between same-sex and opposite-sex couples was passed by the Netherlands in 2000.
- Social science research indicates that the exclusion of same-sex couples from marriage stigmatizes and invites public discrimination against gay and lesbian people.
- Opposition to same-sex marriage is based on claims such as that homosexuality is unnatural and abnormal.
Same-sex marriage: in the Indian context
- The right to marry is a fundamental right under article 21.
- However, same-sex marriage is also not legalized in India.
- Section 377 in The Indian Penal Code: Unnatural offences; Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with life imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to pay a fine.
- The adoption law prohibits the adoption of a child by same-sex couples.
- Under present law, one partner cannot inherit properties left behind by their same-sex partner.
- At Present Marriages between same-sex partners are not recognized in India, but this can be changed by inserting a provision in the Special Marriage Act.
Special Marriage Act (SMA), 1954
- The original Special Marriage Act was enacted in 1872, following a campaign launched in 1860 by Brahmo Samaj for simpler marriage ceremonies.
- Its requirement of renouncing one’s religion was not consistent with modern ideas of liberalism, individualism and autonomy of the individual.
- Therefore the 1954 law replaced the 1872 Act, and the requirement to renounce one’s religion was removed.
- The law was the first step toward a Uniform Civil Code. The objective was that if we want a liberal, modern, secular and progressive law, we first start the experiment voluntarily.
- Therefore, those going for an inter-faith marriage could register under the SMA.
- Once your marriage is registered under SMA, your religion’s laws won’t apply.
- The provision under the law requires couples getting married to give notice to the Marriage Officer 30 days before the date of marriage.
- The notice can be inspected by “any person and anyone can object to the marriage.
Arguments in favour of same-sex marriage
- Homosexuality exists in nature, and whatever exists in nature is natural. We, humans, exist in nature, homosexuality is therefore not unnatural.
- Refusal to recognize same-sex marriage is a violation of the constitutional right of same-sex couples.
- Not allowing same-sex marriage penalizes children by depriving them of state benefits because the state disapproves of their parent’s sexual orientation. Research shows that children adopted by gay parents thrive as well as other children.
- Indian Constitution's Articles 15 and 16 forbid discrimination on grounds only of religion, race, caste, sex, or place of birth.
- The right to express one's sexuality is guaranteed by Article 19 1 (a).
- The fact of the matter is that homosexuals want marriage in the purely legal form and religions do not have to approve of this.
- Courts have recognized that rights can be fundamental even if they were traditionally considered immoral or even criminal, as long as they have become “implicit in the concept of ordered liberty”.
Arguments against Same-sex marriage
- “Homosexuality” is unnatural therefore homosexuals ought not to be permitted to enter the natural institution of marriage.
- Same-sex marriage ruins the sanctity of marriage.
- The right to marry is fundamental but the right to marry someone of the same sex is not. Before a fundamental right can be recognized, a “deeply rooted tradition” must be found. Homosexuality is not a deeply rooted tradition.
- The legislature, not the courts should decide how to make profound social changes.
- Marriage is to encourage stable relationships because people in them are more likely to contribute to a stable society.
- Legalizing same-sex marriage could lead to the acceptance of polygamy and incest.
- Indian law authorizes marriages only between men and women.
Supreme Court on IPC 377, Homosexuality
- The constitutional bench of the Court unanimously held that the criminalization of private consensual sexual contact between adults of the same sex under Section 377 of IPC was unconstitutional.
- Article 14, Granting equality before the law.
- Article 15, prohibits discrimination on Grounds of religion, race, Caste, Sex or place of birth.
- Article 21 Guarantees the protection of life and personal liberty.
- Equal Citizenship and equal protection of laws
- Key Points of the Judgement
- Homosexuality is documented in 1500 species and is not unique to humans.
- Majoritarian morality cannot dictate constitutionality morality and Human rights are more important than religious rights.
- Social morality cannot be used to violate the fundamental rights of even a single individual.
- Society is continuously moving forward. Supreme Court has already struck down section 377 of the Indian Penal Code thus recognizing homosexuality. Now Courts and legislatures have to work together to provide Same-sex couples with a full range of marriage options.
- Every constitution allows for the realization of the full potential of an individual. Allowing same-sex marriage will provide dignity to the people.
- Educating the masses about the difference between Gender and sexuality would bring positive change in social attitudes towards same-sex individuals/couples.
- India has taken a giant leap towards modernity, acceptance and equality, and now the need of the hour is to maintain equality before the law of all sexual orientations and identities
- Supreme Court Judgment on Homosexuality has opened doors to endless possibilities, this will Increase Respect for India as a progressive Society and a polity with a modern outlook.
Q. Even after the Supreme Court decides to decriminalize Section 377 of the Indian Criminal Code, the LGBTQ community still faces societal marginalization (IPC). Do you believe that making same-sex unions legal will make this problem better?
Must Read: https://www.iasgyan.in/blogs/same-sex-marriage-in-india