A batch of petitions seeking the legal recognition of same-sex marriages are being heard by a Constitution Bench under CJI D. Y. Chandrachud.
The Union government has opposed the petitions. Law Minister Kiren said that marriage is a matter of policy to be decided by Parliament and the executive alone.
WHAT IS MEANT BY SAME-SEX MARRIAGE?
- Same-sex marriage is the legal recognition of a marriage between two individuals of the same sex.
- It grants same-sex couples the same legal and social recognition, rights, and privileges that are traditionally associated with marriage, including property rights, inheritance rights, and the ability to make decisions for each other in medical emergencies.
SAME-SEX MARRIAGE IN INDIA
- Same-sex marriage is currently not legally recognized in India.
- Section 377 of the Indian Penal Code, which criminalized homosexuality, was struck down by the Supreme Court of India in 2018, which was a landmark decision for LGBTQ+ rights in the country.
CASE BACKGROUND
- In K.S. Puttaswamy’s (2017) case, SC ruled that the fundamental right to privacy (including bodily autonomy, and sexual orientation) is intrinsic to life and liberty and thus integral to Article 21.
- After these judgements, there was hope that same-sex marriages would be legalised, but that has not been the case, prompting many couples to move to court.
WHAT STAND DO PETITIONERS HAVE?
Same-sex marriage as a matter of rights
- Any social policy is liable to judicial interference if rights are violated.
- The petitioners rely on the rights to equality and non-discrimination as laid out in Articles 14 and 15.
- The Constitution prohibits the state from discriminating based on sex.
Same-sex marriage is a matter of privacy
- Right to privacy: Supreme Court recognized this right to be part of the right to life and liberty under Article 21 of the Constitution in the celebrated Puttaswamy (2017) verdict.
- Pursuit of happiness: Homosexuality is not an offense, it is just a way of the pursuit of happiness, a way to achieve sexual happiness or desire.
Many countries recognizing
- According to 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.
WHAT IS THE CENTRE ’S STAND?
- Opposed same-sex marriage and said judicial interference will cause complete havoc with the delicate balance of personal laws.
- This definition of marriage is socially, culturally and legally ingrained into the very idea of the heterogeneous institution (a union between two persons of the opposite sex) of marriage.
- The decriminalisation of Section 377 IPC does not give rise to a claim to seek recognition for same-sex marriage.
- Even if same-sex marriage is claimed under Article 21, the right can be curtailed by the competent legislature on permissible constitutional grounds including legitimate state interest.
WAY AHEAD:
- It is clear that the two organs of the state are not in agreement on same-sex marriages.
- Even if the Court rules in its favour, the march towards same-sex marriage in a diverse country with well-entrenched traditions will not be easy.
- Therefore, awareness of sex, gender and constitutional rights from the school level to change things on the ground is the need of the hour.
THANKYOU AND ALL THE BEST.
