Same Sex Marriage

Context: A Supreme Court Bench led by the Chief Justice of India has recently referred petitions to legally recognise same-sex marriages to a Constitution Bench of five judges.

Observations of the Court

• The Supreme Court addressed the government’s concerns about the potential psychological impact of same-sex marriages on children, stating that growing up with lesbian or gay parents does not necessarily mean the child will identify as lesbian or gay.
• The government’s concern about how such a move would affect Indian “social ethos” was also addressed by the Court.
• The Court observed that Parliament will have to examine what would be the psychology of a child who has seen either two men or only two women as parents and what would be the psychology of a child who was not reared by a father and a mother and whether this institution aligns with India’s social ethos.

About Same Sex Marriage

• Same-sex marriage is the marriage of two people of the same sex.
• As of 2023, marriage between same-sex couples is legally performed and recognized in 34 countries, with the most recent being Andorra.
• Same-sex marriage is not legally recognized in India, and the existing marriage laws, such as the Hindu Marriage Act and the Special Marriage Act, only recognize marriages between a man and a woman.
  • However, it should be noted that, Special Marriage Act uses gender neutral terms as its Section 5 says “a marriage between any two persons may be solemnized under this Act”.
  • Similarly Section 5 of the Hindu Marriage Act mentions marriage between “any two Hindus”.

Arguments for and against Same-Sex Marriages 

Arguments for Same-Sex Marriages

• Equality: All individuals should have the same rights and opportunities, including the right to marry the person they love, regardless of their sexual orientation or gender identity.
• Love and Commitment: Allowing same-sex couples to marry recognizes and affirms these relationships.
• Social Acceptance: Legalizing same-sex marriages sends a message of social acceptance and inclusion, and can help reduce stigma and discrimination against the LGBTQ+ community.

Arguments against Same-Sex Marriages:

• Traditional definition: Marriage has traditionally been defined as a union between a man and a woman, and changing this is seen as undermining the institution of marriage.
• Religious Beliefs: Same-sex marriages go against the teachings of many religions, and legalizing them would infringe on the religious freedom of those who oppose them.
• Parenting: Legalizing same-sex marriages is believed to harm children’s psychy.
• Slippery Slope: Legalizing same-sex marriages could lead to the recognition of other non-traditional forms of relationships, such as polygamy or incest.

Status of LGBTQ+ Community in India

The Constitutional status of the LGBTQ+ community in India has been a topic of debate and struggle for many years.

• Prior to 2018, Section 377 of the Indian Penal Code criminalized homosexual acts, making it illegal to engage in same-sex sexual activity.
  • This was upheld by the Supreme Court as constitutionally valid in Koushal v. Naz Foundation (2013).
  • This provision was struck down by the Apex Court of India in September 2018 in a landmark judgment, Navtej Singh Johar v. Union of India, which decriminalized consensual same-sex relationships.
• However, there is no specific constitutional protection for the community in India. The Indian Constitution does not explicitly mention sexual orientation or gender identity as protected characteristics, nor does it provide explicit anti-discrimination protections based on these characteristics.
• The Supreme Court has made several judgments in recent years that recognize the rights and dignity of LGBTQ+ individuals. For example:
  • National Legal Services Authority v. Union of India (2014): This landmark judgment recognized transgender people as a third gender, and directed the government to take steps to provide them with legal recognition, provide access to education, employment, and healthcare services and protection from discrimination.
  • S. Swapna v. Government of Kerala (2015): In this case, the Supreme Court ordered the Kerala government to provide transgender people with access to healthcare facilities and to establish separate prison facilities for them.

Constitutional Provisions for the Protection of LGBTQ+ Community

• Right to Equality: Article 14 of the Constitution guarantees the right to equality before the law and the equal protection of the law to all individuals, regardless of their sex, caste, religion, or place of birth. The Supreme Court has interpreted this provision to include sexual orientation as a protected ground.
• Right to Non-Discrimination: Article 15 of the Constitution prohibits discrimination on the grounds of religion, race, caste, sex, or place of birth.
• Right to Freedom of Expression: Article 19(1)(a) of the Constitution guarantees the right to freedom of expression to all individuals. This provision can be used to protect the rights of LGBTQ+ individuals to express themselves and advocate for their rights.
• Right to Life and Personal Liberty: Article 21 of the Constitution guarantees the right to life and personal liberty to all individuals. The Supreme Court has interpreted this provision to include the right to live with dignity, which includes the right to make choices about one’s sexuality and gender identity.
• Right to Privacy: The Supreme Court has recognized the right to privacy as a fundamental right under the Constitution. This includes the right to make choices about one’s sexual orientation and gender identity without fear of discrimination or harassment.

Other Terms to Know

• Constitution Bench
  • It is a bench of the Supreme Court having five or more judges on it.
  • According to Article 145(3) of the constitution, matters involving substantial questions of law as to the interpretation of the constitution are to be decided by a minimum of five judges.
• Division Bench: It consists of 2 to 3 judges of the Supreme Court. Most cases before SC are heard and decided by these division benches.
• Single judge benches: For the first time in history of the SC, single judge bench hearings were started in 2020. Single judge benches will hear appeals related to bail and anticipatory bail cases.

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