- 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 Bar Council of India resolution recently quoted a dubious survey on 99% of Indians being against marriage equality.
- Other commentators argue that society is not ready for marriage equality.
- The Supreme Court began hearing the case for marriage equality within the ambit of the Special Marriage Act for marriage rights of same-sex couples.
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
Background of same-sex marriage:
- In parliamentary debate minutes(MP Vijaya Lakshmi Pandit): Law would not have many immediate takers but that an emancipated next generation would demand the right to choose their partners.
- The civil union law as a calculated, rational decision where a freedom wilfully granted is better than a freedom that is ‘taken’ (LS Debates 1954).
- Perception among the sections of the two Houses that allowing citizens to marry anyone of their choice could potentially lead to a collapse of society and civilisation.
- Former President, Dr. Rajendra Prasad: opposed the Hindu Code Bill in his private correspondence with Jawaharlal Nehru.
- He believed that the measure was forcing something on a vast majority.
- According to him, a small, likely microscopic minority — considered it a right.
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
- Securing more rights and visibility for a plurality of identities and desires is imposing the ‘lifestyle’ of a few on to a presumed majority that is not represented in these struggles.
- Indian polity and society still struggle with the idea of marriage reform and individual choice.
- The campaigns against inter-caste and inter-community couples
- The need for social sanction often triumphs the rights afforded under the Act through a bureaucracy that has become a reflection of social morality.
- After almost 70 years, the Special Marriage Act still has fewer takers due to political campaigns, bureaucratic overreach and the general misconception that it only caters to inter-religious couples.
- V L Pandit had argued in 1954: The law should hold out more potential than the public imagination allows for and should be aimed at improving the lives of the more marginalized.
- Affording rights to a sexual minority — even if it is a minority — reaffirms the rights of the citizenry as a whole.
- 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
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)
