Supreme Court’s decision on Same-sex marriages (Specials)

A majority view on a five-judge Constitution Bench of the Supreme Court refuses to legalise ‘same-sex marriages’ or ‘civil unions’ in India mentioning that non-heterosexual couples cannot claim an unqualified right to marry.

Timeline of the LGBTQIA+ Movement in India:

• During British rule in 1860, homosexual intercourse was considered unnatural and was declared a criminal offence under Chapter 16, Section 377 of the Indian Penal Code (IPC).
• After independence, on November 26, 1949, the Right to Equality was implemented under Article 14 but homosexuality still remained a criminal offence.
• Decades later, on August 11, 1992, the first known protest for gay rights was held.
• In 1999, Kolkata hosted India’s first Gay Pride Parade. The parade, with only 15 attendees, was named Calcutta Rainbow Pride.
• In 2009, a landmark Delhi High Court decision in the Naz Foundation v. Govt. of NCT of Delhi case held that treating consensual homosexual consummation between adults as a crime is a violation of fundamental rights protected by India's Constitution.
• In the Suresh Kumar Koushal and another v. NAZ Foundation and others case in 2013, the Supreme Court overturned the Delhi High Court Naz Foundation v. Govt. of NCT of Delhi case and reinstated Section 377 of the Indian Penal Code.
• In late 2015, MP Shashi Tharoor introduced a bill to decriminalise homosexuality but it was rejected by the Lok Sabha.
• In August 2017, the Supreme Court upheld the right to privacy as a fundamental right under the Constitution in the landmark Puttuswamy judgement. This gave renewed hope to LGBT activists.
• On September 6, 2018, the Supreme Court ruled unanimously that Section 377 was unconstitutional "in so far as it criminalises consensual sexual conduct between adults of the same sex".
• The battle against Section 377 has ended but the bigger battle for equal rights for the LGBT community is still ongoing.

Recent views of the Supreme Court (SC):

• Two judges including the CJI gave their views in favour of same-sex marriage, mentioning that “Discrimination on the basis of sexual orientation is violative of Article 15 of the Constitution”.
• The minority views of the two judges held that the ‘Right to enter into a union’ cannot be restricted on the basis of sexual orientation.
• The majority views of Justices S.R. Bhat, Hima Kohli and P.S. Narasimha disagreed on the point, holding that it was for the legislature, and not the Court, to formally recognise and grant legal status to non-heterosexual relationships.
• Justice Bhat disagreed with the Chief Justice’s interpretation that the right to form a civil union by same sex couples flowed from their right to choose a partner, right to life and free expression.
• But all the five judges on the Bench agreed that the Special Marriage Act of 1954 was not unconstitutional for excluding same-sex marriages.

Court’s final Verdict:

• The court highlighted that; it cannot initiate the construction of a “parallel framework” of the institution of marriage. Such recognition was not based on law.
• The court has broadly ordered that it was for the Parliament and State legislature to enact laws on such marriage.
• The court urged the government to form a high-powered committee chaired by the Union Cabinet Committee to expeditiously look into genuine human concerns faced by same-sex partners.
• Also they suggested that the committee should look into whether queer couples could be treated as members of the same family for the purpose of ration card; succession; maintenance; opening of a joint bank account; arrangement of last rites of partners; access benefits of rights and benefits of employment, etc.
• It also clearly mentioned that Right to marry is not a Fundamental Right under Article 21 or Article 15.

How union of Couple is defined in Indian Laws?

• A “civil union” is a legal status that bestows upon same-sex couples some rights and responsibilities which are allowed to heterosexual married men and women.
• Civil union gives couples employment, inheritance, property and parental rights. However, there are some differences between a marriage and a civil union.

Central Government’s say:

• During hearings in the case, the Centre had submitted that it would set up a committee headed by the Cabinet secretary to look into practical difficulties faced by same-sex couples.
• These include getting rights to Provident Fund, and pension benefits among others.

Earlier Views of Supreme Court on Same-Sex Marriages:

• Marriage as a Fundamental Right (Shafin Jahan v. Asokan K.M. and others 2018):
  • While referring to Article 16 of the Universal Declaration of Human Right and the Puttaswamy case, the SC held that the right to marry a person of one’s choice is integral to Article 21 of the Constitution.
  • Article 16 (2) in the Indian constitution provides that there cannot be any discrimination on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them.
  • The right to marry is intrinsic to the liberty which the Constitution guarantees as a fundamental right, as the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty.
• LGBTQ Community Entitled to all Constitutional Rights (Navjet Singh Johar and others v. Union of India 2018):
  • The SC held that members of the LGBTQ community “are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution” and are entitled to equal citizenship and “equal protection of law”.

What is the Special Marriage Act?

• The Special Marriage Act (SMA), 1954 is an Indian law that provides a legal framework for the marriage of people belonging to different religions or castes.
• It governs a civil marriage where the state sanctions the marriage rather than the religion.
• The Indian system, where both civil and religious marriages are recognized.
• Applicability: The applicability of the Act extends to the people of all faiths, including Hindus, Muslims, Sikhs, Christians, Sikhs, Jains, and Buddhists, across India.
• Recognition of Marriage: The Act provides for the registration of marriages, which gives legal recognition to the marriage and provides a number of legal benefits and protections to the couple, such as inheritance rights, succession rights, and social security benefits.
  • It forbids polygamy and declares a marriage null and void if either party had a spouse living at the time of the marriage or if either of them is incapable of giving valid consent to the marriage due to unsoundness of mind.
• Written Notice: Section 5 of the Act specifies that the parties must give written notice to the Marriage Officer of the District and that at least one of the parties must have lived in the district for at least 30 days immediately before the date of such notification.
  • Section 7 of the Act allows “any person to object to the marriage before the expiration of 30 days from the date of the notice's publication.”
• Age Limit: The minimum age to get married under the SMA is 21 years for males and 18 years for females.

 Issues related to ‘Third Gender’ in India

• Discrimination in the educational setup and workplace: The majority of the people in this community is either illiterates or has less education, because of which they are not able to get involved much in the educated section of the society.
• According to a census which was conducted in 2011 the population of transgender people was 4.9 lakhs and in which only 46% of people were literate which is extremely less compared to the normal population which has a literacy rate of 74%.
• Social exclusion: Since the transgender communities lack education and employment opportunities they are looked upon as a lower class by society resulting in exclusion.
• Their self-esteem and self-confidence hit really hard because of this exclusion and they end up taking undesirable jobs.
• Lack of legal protection and victims to hate crimes: The Transgender community is not legally protected as much as any other community and because of this; they are easily victimized for the crimes that they didn’t even commit. They undergo a lot of violence and become victims of hate crimes.
• High Unemployment rate: According to the right to education act, they are categorized as a ‘disadvantage group’ which means they have 25% reservation as an economically weaker section.

Suggestions:

• 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.
• Legal Reforms: Amendments in the Special Marriage Act, 1954 to allow same-sex couples to legally marry and enjoy the same rights and benefits as opposite-sex couples.
• Meanwhile bring the contract like agreement so that homosexual people can enjoy similar rights like heterosexuals.
• 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.
• Legal Challenges: The Indian LGBTQIA+ community can challenge the constitutionality of the current laws that prevent same-sex marriage in court. Such legal challenges can help establish a legal precedent that will pave the way for the legalization of same-sex marriage.
• Collaboration: The legalisation of same-sex marriage requires a concerted effort from all stakeholders, including the LGBTQIA+ community, the government, civil society, and religious leaders.
• By working together, we can create a more inclusive society where everyone has the right to love and marry whomever they choose, regardless of their gender.

Conclusion:

Our country has passed an act (Transgender protection act) that aims at protecting their rights and they are not subjected to any kind of discrimination in healthcare, education, and employment.  Our responsibility as civilians is to treat them equally and give them equal respect as any other gender.