THE CONTEXT: In its latest judgment, with respect to same-sex marriage, the Supreme Court has stated that there is no fundamental right to marry.
RELATED KEY JUDGEMENTS:
- Section 377 of the IPC: Section 377 IPC was a law made by the British, that criminalised sex between non-heterosexual couples was punishable with 10 years imprisonment. For decades, the LGBTQ community and others argued that this section was discriminatory, and provided legal protection to the harassment and intimidation of gay couples.
- Navtej Singh Johar v. Union of India Case (2018): In September 2018, a five-judge bench of the Supreme Court unanimously decriminalized consensual sex between two adults irrespective of their gender and partially struck down Section 377 of the IPC. The court referred to those areas of the section that criminalized consensual unnatural sex as “irrational, indefensible and manifestly arbitrary”. However, in its ruling, the court also made it clear that other aspects dealing with unnatural sex with animals and children still remained in force, and that it was confining its order to consenting acts between two adults.
- NALSA Case Judgement: The judgement was delivered by a two-judge bench comprising of Justice K.S. Radhakrishnan and Justice A.K. Sikri on 15th April 2014. The court held that transgenders fall within the purview of the Indian Constitution and thus are fully entitled to the rights guaranteed therein. The court made a distinction between biological sex and Psychological sex.
NEED FOR LEGALISATION:
- Upheld by court judgement: It had also been held by the court in diverse decisions that in India a person is entitled to autonomy, dignity, privacy and the right to choose their own partners to live with or in marriage. Especially after Navtej Johar, it is logical to assume that they may prefer to develop a long-term relationship, including that of marriage.
- Essentiality of marriage: Marriage brings along with it a host of advantages for the couple, including succession in the field of inheritance, adoption of children, taking decisions in case of hospitalisation, and benefits from employers. More than anything else, in the eyes of society, it sanctifies the relationship and gives it legitimacy. Without that legitimacy, LGBTQI communities are stigmatised.
- Fundamental rights: The Supreme Court of India has read the right to be treated with dignity into Article 21. It is on that basis, that positive rights, including the rights to education, food, environment have been evolved. Thus, it is reasonable to develop the concept of the right to marry into Articles 19 and 21.
- India signatory to Universal Declaration of Human Rights (UDHR): The Supreme Court has used the provisions of UDHR to elaborate rights under the Constitution. India, being a signatory to UDHR, must take steps to protect the human rights of same sex couples. Article 16 of the UDHR, 1948 provides that, “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family’’.
ISSUES WITH COURT JUDGEMENT:
- Violation of human rights: Under the UDHR, the right to marry is a human right .Ignoring the right to individual is violation of UDHR as India is an original signatory to the Universal Declaration of Human Rights (UDHR) and even Constitution was greatly influenced by the UDHR. As a signatory country to the UDHR, legislation by Parliament and State Legislatures in India must be in accord with the UDHR.
- Reduces them to second class citizen: Not recognising marriage for same sex couples is not only discriminatory against them. The unintended consequence of the judgment in the larger society is that the notion that same-sex couples are “not fit for marriage” will be established and will reduce them to second-class citizens.
- Issues with Supreme Court judgement: Though for transgender persons, the court holds that marriage between a trans-man and a cis-woman or between a transwoman and a cisman is legal. Thus, the court has rightly made the leap from biological sex to gender, which is self-identified in accordance with NALSA. But the court couldnot made the leap for from biological sex to sexual orientation.
THE WAY FORWARD:
- Queer inclusive Policies: Legal and the law enforcement systems need to be on the issues of same sex marriages. Inclusive approach for queer couples must be planned and adopted by the Government and society.
- 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. 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.
- Sensitization: The Court must pass the directions to sensitise the authorities on this behalf and should set up committees to look into a number of issues to protect same-sex couples from any harassment.
THE CONCLUSION:
However, the flaw is fundamental which needs to be corrected, sooner than later. The sooner this wrong is set right, the better it would be for society as a whole. It requires constant efforts and collaboration from all stakeholders, including the LGBTQIA+ community, the government, civil society, and religious leaders.
PREVIOUS YEAR QUESTION
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
The recent judgement on same-sex marriage is a violation of the fundamental rights of the queer community. Examine.
NOTE: Please refer to Mains focus article for more: https://blog.lukmaanias.com/2023/10/21/on-marriage-equality-the-supreme-court-stops-short/
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