Same-Sex marriage

Same-Sex marriage

News: The Supreme Court has rejected the plea for same-sex marriage.

Background:
• While two judges — the CJI and Justice Sanjay Kishan Kaul — recognised that queer couples can form “civil unions”, they were in the minority. The majority of three judges said that the issue lay exclusively in the domain of the legislature.
• We will understand the verdict by addressing the 4 key questions discussed by the SC bench and verdict of the majority and minority.

Question 1 – The Fundamental Right to marry 
Context: The petitioners wanted the SC to declare marriage as a fundamental right as the SC declared Privacy as a fundamental right in 2017.
• Both the majority and minority views rejected the question of declaring marriage as a fundamental right. 

Minority’s viewMajority’s view
• Marriage has attained the social and legal significance only because the state has regulated it through law.• The fundamental importance of marriage remains that it is based on personal preference and confers social status. Importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support.

Question 2 – On the Interpretation of Special marriage act
Context: The petitioners had asked the SC to interpret the word marriage as between “spouses” instead of “man and woman”. Alternatively, the petitioners had asked for striking down provisions of the SMA that are genderrestrictive.
• Both the majority and minority views rejected the demands of the petitioners for the re-interpretation of Special Marriage Act (SMA) 1954. 

Minority’s viewMajority’s view
• CJI Chandrachud said the court could not allow that, because it would “in effect be entering into the realm of the legislature”.• The provisions and the objects of the SMA clearly point to the circumstance that Parliament intended only one kind of couples, i.e., heterosexual couples belonging to different faiths, to be given the facility of a civil marriage

Question 3 – On Queer couples’ right to adopt a child
Context: The petitioners had argued that the guidelines of the Central Adoption Resource Authority (CARA), which does not allow unmarried couples to jointly adopt children, is discriminatory against queer couples who cannot legally marry. 

Minority ViewMajority View
• Suggested to strike down the discriminatory provisions of the CARA regulation.
• The CARA provisions reinforces the disadvantage already faced by the queer community. Law cannot make an assumption on good and bad parenting based on the sexuality of individuals.
• While the judges agreed with the minority view that CARA provisions are discriminatory. However, they said these provisions cannot be struck down by the judiciary.
• The legislature and executive must remove them.

Question 4 – On option of Civil unions for Queer couples.
Context: The halfway approach of recognising civil unions for queer couples was debated during the hearing.
 However, the petitioners argued that civil unions are not an equal alternative to the legal and social institution of marriage. Relegating non-heterosexual relationships to civil unions would send the queer community a message that their relationships were inferior to those of heterosexual couples. 

Minority ViewMajority View
• It favoured the civil union and prescribed it as a ‘choice’ for the queer community. Located the right to form Civil Unions within the fundamental right to freedom of speech and expression.
• Committee chaired by the Cabinet Secretary should be constituted to set out the rights which would be available to queer couples in civil unions.
• It agreed with the minority view. But judiciary should not prescribe civil unions as a ‘choice’ to queer couples.
• The majority opinion said that the state should facilitate this choice and only for those who wish to exercise it. 

Why was legalization of same sex marriage favored in India?
• The petitioners cited fundamental rights and argued that LGBTQIA+ couples deserve the legal privileges bestowed by marriage. Articles 14 and 15 of the constitution prohibits discrimination on the basis of sex.
• The Supreme Court in the Navtej Singh Johar case (2018), interpreted “sex” to include “sexual orientation”. Thus, denial of the right to marriage to the same-sex couples, is discrimination against them based on their sexual orientation.
• The right to privacy (Article 21) also encompasses the ability to make choices regarding one’s body and intimate relationships. Legalisation of same sex marriage would ensure the homosexual couple’s right to privacy.
• The petitioners also argued that “India is a marriage-based culture” and that LGBT couples should be granted the same rights as any heterosexual couple, such as status of “spouse” in financial, banking and insurance issues, medical and end-of-life decisions, inheritance, succession and even adoption and surrogacy.
• Legalizing of same sex marriage would promote social acceptance of LGBT couples and relationships.
• Same-sex marriage is legal in 34 countries around the world.

What arguments were put against Legalizing of Same sex marriage?
• The different aspects of marriage, succession and adoption are governed by religious personal laws in India. These marriage laws and customs are for heterosexual couples only.
• Legalisation of same-sex marriages could lead to legal complications in issues related to adoption, child custody, inheritance and taxes.
• Children are better off being raised by heterosexual parents.
• Only parliament could make law and the judges could only interpret them. It is a matter of public policy which only parliament is fit to address.
• Some people believe that same-sex marriage is a threat to traditional family values and it can disrupt social norms, values and create social unrest.

Way Forward
• The centre should form the committee under cabinet secretary to provide civil union rights and other rights like inheritance, adoption etc. to homosexual couples.
• Engaging in a dialogue with religious leaders and communities can help bridge the gap between traditional beliefs and modern attitudes towards same-sex relationships.
• Raise awareness campaigns, expand public opinion about LGBTQIA+ community. 

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