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THE CONTEXT: In its latest judgment, the Supreme Court of India has taken some steps to protect same-sex unions from discrimination. But in the final analysis, the Court limited itself to protecting only a few rights instead of granting full recognition to same-sex marriage.
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- In November 2022, two same-sex couples moved the Supreme Court, arguing that their inability to marry under Indian family law amounted to a violation of their fundamental rights to equality, life and liberty, dignity, free speech and expression, etc.
- A five-judge Constitution bench headed by Chief Justice D Y Chandrachud reserved its judgment after a 10-day hearing in the matter in May 2023 and delivered its final verdict on October 17,2023.
- A five-judge Bench of the Supreme Court announced a 3:2 verdict on petitions seeking the rights for members of the LGBTQ community to marry and choose family.
- The Court declined to legalise same-sex marriage, placing it upon the Parliament and State governments to decide if non-heterosexual unions can be legally recognised.
- The Centre has been told to establish a high-powered committee under the Cabinet Secretary to consider the scheme of rights flowing from the civil union.
KEY CASES RELATED TO QUEER RIGHTS:
- The 2014 NALSA judgment affirmed transgender people’s fundamental rights.
- In 2017, K. Puttaswamy v Union of India linked privacy with the rights of queer persons.
- The landmark Navtej Singh Johar judgement in 2018 read down Article 377, decriminalising homosexuality as an unnatural offence.
IS THE RIGHT TO MARRY A FUNDAMENTAL RIGHT?: RECENT VERDICT
- According to the recent court verdict, marriage is an institution set up under law and same-sex couples do not have a right to participate in it unless the law permits them to do so.
- The Court upheld the Special Marriage Act, 1954 in its current form, e., permitting marriages only between a ‘man’ and a ‘woman’. It does not extend it to same-sex marriages.
- It upheld the institution of marriage flows from the statutes created by the state and the right to marry is not expressly recognized either as a fundamental or constitutional right under the Indian Constitution but a statutory right.
- The Court held that same-sex marriage is possible only through specific law and that it can’t read into existing laws. The issue of codifying has been left to the government, which has been told to set up a committee to deliberate on same-sex marriages issue.
OTHER OBSERVATIONS:
- The right to enter into a union and ability to choose partner is mentioned in Article 19 and Article 21.
- The court observed that the bar on union between two queer persons based on their gender identity would be in violation of right under Article 15.
- CJI also added that in Article 21 – sex must also be used to mean sexual orientation.
ISSUES:
- Denied right to marry: As the recent verdict has not granted any approval on the right of marriage, this is discriminatory to queer people. As they are denied to create a union solely on account of their sexual orientation. Society’s recognition of marriage is a public recognition of that form of commitment that is being denied here.
- Issue of adoption: The current laws embody a discriminatory assumption that only heterosexual parents can, as a couple, be appropriate parents.
- Historical injustice: Queer people are facing historical injustice in the society and a larger web of discrimination is going on which affects not only their fundamental right but human rights as well. Discrimination also has indirect and deep consequences on society as
- Religious and Cultural Beliefs: The union of same-sex couples is seen against religious and cultural beliefs. Also, it is seen as against the primary purpose of marriage that is procreation and thus seen as unnatural.
- Legal issues: There are concerns that allowing same-sex marriage will create legal problems, such as issues with inheritance, tax, and property rights. There are not appropriate laws in the country to regulate on these issues.
THE WAY FORWARD:
- Granting recognition to marriage: It should be on the part of the legislature to frame adequate laws to grant recognition to the marriage of queer people. It is the duty of the State to extend necessary protection. It would signal a positive message and acceptance in society for queer people as well.
- Regulatory framework: There should be a separate anti-discrimination law and proper laws for punishment for the discriminatory practices against queer people to undo the historical injustice against the community as current laws are fragmented.
- Collective force: There is a need of collective force for advocacy of queer marriage and all the NGOs, the activism has to be even strongly come forward and work on strategies and policies to bring in the consensus to understand the challenges.
- Adoption regulation: Law on adoption should be on the basis of merit, not on sex. Merely because a relationship is regulated by law, it does not mean that couples who are not married does not mean they are not serious about their relationship.
- Global recognition: A growing number of governments around the world are considering whether to grant legal recognition to same-sex marriages. India should also come forward to grant legal recognition for protection of their rights. State legislatures can enact laws recognising and regulating same-sex marriages; the Constitution under Articles 245 and 246 empowers both the Parliament and the State to enact marriage regulations. They need to create a gender-neutral law for marriage.
THE CONCLUSION: This judgment will only delay the already long and arduous struggle to create the conditions where same sex couples could live a life in freedom without fear. There is a need to create a more inclusive society by giving equal rights regardless of their gender.
PREVIOUS YEAR QUESTION
Q. Examine the scope of Fundamental Rights in the light of the latest judgement of the Supreme Court on Right to Privacy. (2017)
MAINS PRACTICE QUESTION
Q. The recent verdict has left the issue of codification of law to recognise same-sex marriage to the government instead of stepping into the domain of legislature. How far do you think this will address the concerns of queer people?. Explain in the context of recent judgments on queer people by Supreme Court.
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