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Supreme Court’s decision on Same-sex marriages

  • Published
    18th Oct, 2023

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.

  • Today, at least 12 nations allow civil unions or registered partnerships for homosexual couples.
  • Croatia, the Czech Republic, Greece, Hungary, Italy, Slovenia, and Estonia have such laws.
  • Austria, Sweden, Norway, Brazil and Chile are among the nations that first recognised the right of same-sex couples to enter into civil unions before recognising their legal right to marriage.

Views of the Supreme Court:

  • 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.

The right to marriage was a statutory right or flowing from a custom.

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.

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.

LGBTQAI+ Community and Challenges:

  • The LGBTQAI+ acronym stands for Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, and Asexual and others.
  • They are the people who don’t identify with cisgender heterosexual “ideals”.
  • In India, the LGBTQIA+ community also includes a specific social group, a distinct community: the Hijras.
  • They are culturally defined either as "neither men, nor women", or as men who behave like a woman.
  • At present they are referred to as the Third Gender.

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.

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.

Way forward:

  • 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.
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