15 Oct
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Content
Introduction
Quote: “For the time they are a-changing”: Bob Dylon
In Navtej Singh Johar case, Supreme Court decriminalized homosexuality. But, gay marriages still don’t have legal recognition in India. This may change soon. In a landmark case, a group of 18 same-sex Indian couples have petitioned the country’s Supreme Court to legalize same-sex marriage.
Petitions
The petitions argued that marriage brings with it several rights, privileges, and obligations that are “bestowed and protected by law”. The Delhi Commission for Protection of Child Rights (DCPCR) also advocated for recognition of marriage, filing an intervention application to assist the court on the impact of such marriages on children.
Respondents Opposing the petition:
The Central Government, the National Commission for the Protection of Child Rights, and a body of Islamic Scholars called the Jamiat-Ulama-i-Hind, opposed the petitions.
Argument Supporting Same Sex Marriage
The right to marry for non-heterosexual couple is implicit in Article 14 (Equality), 15 (Non
Discrimination), 16 (Equality of Opportunities in public employment), 19 (Freedom of Speech), and 21 (Right to Life). This is specially true after the SC ruling in ‘Navtej Singh Johar vs. Union of India’ and ‘KS Puttaswamy verdict‘.
In Navtej Singh Johar verdict, Justice Chandrachud held that members of LGBT community are entitled, as all citizens, to a full range of constitutional rights, including liberties protected by the Constitution.
- Being able to marry a partner would allow homosexuals to a host of rights currently
reserved for heterosexual married couples – including right to jointly adopt children, own property together or nominate one another as a surrogate decision maker in a medical emergency, right to inheritance, maintenance and tax benefits.
Since Navtej Singh Johar Judgment, several high court verdicts have ruled in favor of same sex couples having the right to live together.
- In Madhu Bala vs State of Uttarakhand (2020), the high court of Uttarakhand held that right of a same sex couple to live together is a constitutional and human right.
- In Vanitaben Damjibhai Solanki vs State of Gujarat (2020), the Gujarat High Court ordered police protection for two women police constables in a relationship.
- In S Sushma v Commissioner of Police (2021), the court protects the couple in relationship and makes sure that both sets of parents are taken along in this journey.
Supreme Court’s recognition of same sex marriage will contribute to society’s acceptance
towards homosexuality.
A study titled ‘The Anticipated Impact of LGBTQIA+ Marriage Equality Legislation on Indian
Society and Mental Health’ among Indians has found that legalization of such unions will have a “positive impact on mental health of LGBTQIA+ individuals”.
There are 25 countries where same sex marriage is legalized. These countries have seen no harm to their culture and no deterioration of the legitimacy of traditional marriage in any place where same sex marriage is lawful.
How the law can be changed?
- Personal law can be interpreted by court to legalize same sex marriages.
- Government can add a provision defining LGBT culture in personal laws and allow for same sex marriages.
- Special Marriage Act, 1954 can be amended to bring in provisions for same sex marriage.
Arguments of people opposing same sex marriage:
- They argue that same sex marriage is afront to Indian customs and is an urban elitist concept.
- The government is also arguing that if Supreme court legalizes same sex marriage, it would mean a virtual judicial rewriting of an entire branch of law and court must refrain from passing such omnibus orders. Proper authority for this should be the legislature.
- Some don’t consider it as normal because they can’t replicate babies.
Conclusion:
The LGBTQIA+ community is gazing upon the Supreme Court with a profound sense of optimism, anticipating the bestowal of their long-awaited constitutional rights, which have been withheld from them throughout the ages.