• March 16, 2023

Inaction and intervention: On the issue of same-sex marriage

GS1 GS 2 Government Policies & Interventions

In Context

• Legislative inaction on pressing social issues, such as “same-sex marriage,” will legitimise and encourage judicial intervention.

About Same-Sex Marriage

Meaning:

• It refers to the institution of marriage between two men or two women.
• Same-sex marriage is regulated by law, religion, and custom in the majority of the world’s nations.

Global position:

• A total of 32 nations have legalised same-sex marriages, some via legislation and others via judicial pronouncements.
• Many nations first acknowledged same-sex civil unions as a stepping stone to recognising homosexual marriage.
• In 2001, the Netherlands was the first nation to legalise same-sex marriage by modifying a single line of its civil marriage law.
• Most North and South American and European nations have legalised same-sex marriage

Legal position on the issue of same-sex marriage in India:

• India does not recognise registered marriage or civil unions for same-sex couples. However, the Supreme Court of India ruled in August 2022 that same-sex couples can attain equal rights and benefits as a live-in couple (similar to cohabitation).

India’a apex Court’s position

The petitions:

•  Petitioners before the Court view the idea of granting legal recognition to same-sex marriages as a natural consequence of the 2018 decision decriminalising homosexuality.
• Union of India, Ministry of Law and Justice (2018) is a landmark Supreme Court of India decision that decriminalised all adult consensual sexual activity, including homosexual sex.
•  The petitioners argue that the right to marry cannot be denied to a subset of individuals solely on the basis of their sexual orientation.
• The petitions challenge the provisions of the Hindu Marriage Act, Foreign Marriage Act, and Special Marriage Act insofar as they prohibit same-sex marriages.

Supreme Court’s opinion:

• •  The issue before the Court is whether it should interpret provisions of Indian marriage law, particularly the Special Marriage Act of 1954, as permitting same-sex marriages.
  • The Special Marriage Act of 1954 permits the solemnization of marriages between any two individuals who are unable to register their unions under their respective personal laws.

Constitution bench of five judges:

• The Supreme Court stated that the legalisation of same-sex marriage in India is a “fundamental issue” and that a constitution bench of five judges would rule on the petition.

Centre’s position

• Centre has opposed in the Supreme Court a group of petitions seeking legal recognition of same-sex marriage, arguing that it would destroy the delicate balance between personal laws and accepted societal values.
• If such a change is necessary, it must originate from the legislature.

• The state has the right to recognise only marriages between heterosexual partners.

Arguments in favour of legalising Same-Sex Marriage

Fundamental Right: 

• The right to marry the person of one’s choosing is a fundamental right protected by Article 21 of the Indian Constitution.
• Members of the LGBTQ+ community possess the same human, constitutional, and fundamental rights as other citizens.

Right to equality: 

• • The petitioners have argued that barring them from marriage violates their right to equality.

Global practice:

• • According to the global think tank Council of Foreign Relations, same-sex marriages are legal in at least 30 countries, including the United States, Australia, Canada and France.

Arguments against Same-Sex Marriage

Against Biological relation:

• In India, a marriage can only be recognised between a biological man and a biological woman capable of bearing children.

Judicial interference:

• According to the government, any interference by a court in the marital statute based on personal laws would wreak havoc on society and run counter to Parliament’s intent in drafting the laws.

Fundamental rights are not absolute:

• Fundamental rights cannot be an untrammelled right and cannot override other constitutional principles.

Absence of civil rights issues: 

• The 2018 Supreme Court decision decriminalised homosexuality but did not address civil rights concerns.
• As a result, same-sex relationships are legal, but civil rights including marriage, inheritance, and adoption are not guaranteed to the lesbian, gay, bisexual, transgender, queer, and intersex community.

Lack of legal framework:

• The legal framework governing the institution of marriage in this country does not currently permit LGBTQ+ individuals to marry the partner of their choice.
• Couples are unable to protect the family, and adoption, opening a joint bank account, and the admission of children remain uncertain because the law does not recognise same-sex unions.

Way ahead

Not an easy path:

• It will be difficult to enforce same-sex marriage in a country with diverse customs and traditions.

Not enough arguments to deny equal status:

•  The fact that many people consider marriage to be a sacrament or a holy union is insufficient to deny equal status to the union of people of the same sex or to undermine its essential character as a social and economic contract.
•  Awareness campaigns are necessary to educate society about the rights of all individuals.

Inaction and intervention:

• The question is whether the remedy should involve the recognition of same-sex marriages, and if so, whether this should be accomplished through judicial intervention or legislative action.
• Legislative inaction on urgent social problems will legitimise and encourage judicial intervention.