NEWS HIGHLIGHT
Theme : Social Empowerment,Society,Government Policies and Court Judgements.
Paper:GS - 1 and GS - 2
TABLE OF CONTENT
- Context
- Same Sex Marriage
- Decriminalization of IPC Section 377
- What do the Petitioners Say?
- Stand of the Government of the Day
- Important Observations of the Court
- Global Practice
- Road Ahead
Context : A Supreme Court Bench issued notices to the Centre and the Attorney General of India, seeking their response to two petitions filed by gay couples to allow solemnisation of same-sex marriage under the Special Marriage Act, (SMA) 1954.
Same Sex Marriage :
- Same-sex marriage is marriage between partners of the same sex and/or gender identity.
- For example, a marriage between two men or two women.
- In the west, it is considered a civil partnership as a legally registered relationship which offers same sex couples rights similar to those of married couples of the opposite sex.
Decriminalization of IPC Section 377 :
Navtej Singh Johar & Ors. V. Union of India (2018)
- In this landmark verdict, the Supreme Court today scrapped the controversial Section 377– a 158-year-old colonial law on consensual gay sex.
- Section 377, which is part of an IPC 1861, banned “carnal intercourse against the order of nature with any man, woman or animal” — which was interpreted to refer to homosexual sex.
- The Supreme Court reversed its own decision and said Section 377 is irrational and arbitrary.
- The judgment was delivered by a Bench of Chief Justice of India Dipak Misra and Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra
What do the Petitioners Say?
- The SMA provides a civil form of marriage for couples who cannot marry under their personal law.
- Both the recent pleas seek to recognize same-sex marriage in relation to this Act and not personal laws.
- The petition argued that the SMA was “ultra vires” the Constitution “to the extent it discriminates between same-sex couples and opposite-sex couples”.
- It stated that the Act denied same-sex couples “legal rights as well as the social recognition and status” that came from marriage.
- The petitioners emphasised that the SMA “ought to apply to a marriage between any two persons, regardless of their gender identity and sexual orientation”.
- The other petition argued that the recognition of same-sex marriage was only a “sequel” or a continuation of the Navtej Singh Johar judgment of 2018 (decriminalising homosexuality) and the Puttaswamy judgment of 2017 (affirming the Right to Privacy as a fundamental right).
- The plea pointed out that while Section 4 of the SMA permitted the solemnization of marriage between any two persons, a subsequent section placed restrictions. It said:
- “The use, in Section 4(c) of the words ‘male’ and ‘female’, as well as the use of gendered language such as the terms ‘husband/wife’ and ‘bride/bridegroom’ in other sections of the Act, limit the access to marriage to a couple comprising one ‘male’ and one ‘female’.”
- The prohibition of marriage of LGBT people on the basis of sexual orientation and gender identity is an absolute discrimination towards them and is also violative of Right to Equality as granted by the Constitution of India,”
Stand of the Government of the Day :
- the Centre has opposed same-sex marriage, and said judicial interference will cause “complete havoc with the delicate balance of personal laws”.
- In 2021, while responding to the pleas seeking recognition of same-sex marriages in the Delhi High Court, Solicitor General Tushar Mehta for the Centre had said that as per the law, marriage was permissible between a “biological man” and “biological woman”.
- The acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws”.
Important Observations of the Court :
- In the NALSA vs Union of India judgment (2014), the Court had said that non-binary individuals were protected under the Constitution and fundamental rights such as equality, non-discrimination, life, freedom, and so on could not be restricted to those who were biologically male or female.
Marriage as a Fundamental Right (Shafin Jahan v. Asokan K.M. and others 2018):- While referring to Article 16 of Universal Declaration of Human Rights and the Puttaswamy case, the SC held that the right to marry a person of one’s choice is integral to Article 21 of the Constitution.Article 16 (2) in the Indian constitution provides that there cannot be any discrimination on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them.
- The right to marry is intrinsic to the liberty which the Constitution guarantees as a fundamental right, is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty.
Global Practice :
- A total of 32 countries around the world have legalised same-sex marriages, some through legislation while others through judicial pronouncements.
- Many countries first recognised same-sex civil unions as the escalatory step to recognise homosexual marriage.
- The Netherlands was the first country in 2001 to legalise same-sex marriage by amending one line in its civil marriage law.
- Most countries in North and South America and Europe have legalised same sex marriage
Road Ahead :
- Enforcing something like same-sex marriage in a diverse country with varying customs and traditions will not be easy.
- Together with the Court, more needs to be done at the societal level to chip away at conservative views on sex, gender, women and the LGBTQIA+ community.
FAQs :
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What is Navtej Singh Johar & Ors. V. Union of India (2018) ?
ANS. In this landmark verdict, the Supreme Court today scrapped the controversial Section 377, a 158-year-old colonial law on consensual gay sex.
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What is the NALSA Judgement ?
ANS. In the NALSA vs Union of India judgment (2014), the Court had said that non-binary individuals were protected under the Constitution and fundamental rights such as equality, non-discrimination, life, freedom, and so on could not be restricted to those who were biologically male or female.