GS Paper 2
Syllabus: Mechanisms, Laws, Institutions and Bodies constituted for the Protection and Betterment of these Vulnerable Sections
Source: TH
Context: A Bench led by CJI referred petitions to legally recognise same-sex marriages to a Constitution Bench of five judges of the SC.
What is the case?
- Even if LGBTQIA+ couples may live together, they do not enjoy the rights married couples do.
- For example,
- They cannot adopt children or have a child by surrogacy;
- They do not have automatic rights to inheritance, maintenance and tax benefits after a partner passes away,
- They cannot avail of benefits like pension or compensation.
- The Court has been hearing multiple petitioners’ requests for legal recognition of same-sex marriages under the Special Marriage Act (SMA) 1954 and making the law gender-neutral.
How has the SC recently viewed LGBTQIA+ rights?
- In Navtej Singh Johar (2018) case [decriminalised homosexuality by reading down Section 377 (IPC)], the SC held that the community is entitled to the benefit of equal citizenship and to the equal protection of the law.
- Article 21 of the Indian constitution (right to life and liberty) guarantees the choice of whom to partner with, the ability to find fulfilment in sexual intimacies, etc.
- 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 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.
Insta Links:
SC transfers to itself all pleas related to same-sex marriage
