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EDITORIAL ANALYSIS : A strong case exists for marriage equality  

 

Source: The Hindu

 

  • Prelims: Special Marriage Act, 1954), LGBTQ, Directive Principles of State Policy,Article 14,21 etc
  • Mains GS Paper II: Government policies and interventions for development of various sectors, weaker sections of society and interventions for their development etc

 

ARTICLE HIGHLIGHTS

  • A Member of Parliament said that same-sex marriages are against the cultural ethos of India.
    • A petition for marriage rights of same-sex couples (under the Special Marriage Act, 1954) is pending before the Supreme Court of India.

 

INSIGHTS ON THE ISSUE

Context

LGBTIQ+:

  • LGBTQ is an acronym for lesbian, gay, bisexual, transgender and queer or questioning.
  • These terms are used to describe a person’s sexual orientation or gender identity.

 

Difficulties Faced by LGBTIQ+ Community:

  • Heterosexuality
  • In-equality & Violence
  • Deprived in Rights
  • Isolation from society
  • Conflict in Family itself
  • Racial Discrimination

 

Hurdles in adjudication:

  • Legitimacy of the institution: whether courts should intervene in marriage rights or leave it to the wisdom of Parliament.
  • The Court previously decriminalized consensual same-sex conduct on the basis of the ‘right to equality’ and not merely the ‘right to privacy’.

 

How was sexual conduct of LGBTQ people determined as the right to privacy or the right to equality?

  • one’s sexual orientation and choice of a sexual partner were held intrinsic to privacy and personal liberty.
  • Equal treatment of same-sex couples with those of heterosexual couples was considered paramount.

 

Global practices:

  • The European Court of Human Rights, in Dudgeon vs UK (1981): struck down the offense of buggery in Northern Ireland as violative of Article 8 of the European Convention on Human Rights.
    • The court thus adopted a privacy approach and did not go into the question of equal treatment under Article 14.
  • Oliari vs Italy(to seek marriage rights in Italy): The court reasoned that states could not be obligated to grant marriage equality, provided there was some form of legal recognition of their rights
  • Fourie (2005)(South Africa): the Constitutional Court rejected the state’s argument that the Constitution only protected the right to establish family in private life without state interference and not to marry.
  • S-(Lawrence vs Texas 2003) and granted marriage equality (Obergefell 2015): Both under the due process clause of the Fourteenth Amendment of its Constitution
    • It prohibits the state from taking away personal liberties without substantive and procedural fairness.

 

How rights of LGBTQ Community were restored in India?

  • Navtej Singh (2018) case: The top court read down Section 377 IPC and decriminalized consensual sexual conduct
    • Article 14: It created an unreasonable classification for same-sex persons under Article 14
    • Article 21: Violation of bodily autonomy under Article 21.
    • Article 15: Any classification that perpetuated stereotypes was violative of Article 15.
    • Sexual orientation implicated both negative and positive obligations on the state.
  • NALSA (2014): The Court acknowledged the importance of sequential rights arising from ‘gender identity’ (employment, health care, education, equal civil and citizenship rights).

 

Special Marriage Act, 1954:

 

Way Forward

  • Equality analysis requires the state to take positive steps to ensure equal treatment in all spheres of life.
  • Court focused on an all-encompassing meaning of equality in all spheres of life, essential for dignified living to overcome prejudice.
  • The foundation of equal treatment ought to pave the way for marriage equality in India and not be left to the vagaries of the legislature.
  • The Court is the only hope in claiming sequential rights where no active steps have been taken by the Government since the Court’s decision in 2018.
  • Once equal treatment with heterosexual persons is established, it ought to become simpler to seek sequential rights of equalizing age of consent, prohibiting employment discrimination, rights in marriage, adoption etc.

 

QUESTION FOR PRACTICE

Q. Constitutional Morality’ is rooted in the Constitution itself and is founded on its essential facets. Explain the doctrine of ‘Constitutional Morality’ with the help of relevant judicial decisions. (UPSC 2021) (200 WORDS, 10 MARKS)