LEGALIZING SAME SEX MARRIAGE - POLITY
News: Same-sex
union can rock societal values: Centre
What's in the news?
● The
Centre, in an affidavit in the Supreme Court, has frowned upon same-sex
marriage while invoking the "accepted view" that a marriage between a
biological man and woman is a "holy union, a sacrament and a sanskar"
in India.
Key takeaways:
● The
Centre argues that the institution of
marriage has a sanctity attached to it and in major parts of the country,
it is regarded as a sacrament, a holy union, and a sanskar. In our country,
despite statutory recognition of the relationship of marriage between a
biological man and a biological woman, marriage necessarily depends upon
age-old customs, rituals, practices, cultural ethos and societal values.
● Parliament has designed
and framed the marriage laws in the country,
which are governed by the personal laws and codified laws relatable to customs
of various religious communities, to recognize only the union of a man and a
woman to be capable of legal sanction, and thereby claim legal and statutory
rights and consequences. Any interference with the same would cause a complete
havoc with the delicate balance of
personal laws in the country and in accepted societal values.
Government's Argument:
● The
government said the court had only decriminalized sexual intercourse between
same-sex persons in its 2018 judgment in
Navtej Singh Johar, and not legitimized this "conduct".
● The
government said a same-sex marriage cannot be compared to a man and women
living as a family with children born out of the union.
● Living
together as partners and having sexual relationships by same-sex individuals
[which is decriminalized now] is not comparable with the Indian family unit
concept of a husband, a wife and children.
● It
said statutory recognition of heterosexual
marriage was the norm throughout history and is “foundational to both the existence and continuance of the state”.
● The
government said there was a “compelling interest” for the society and the state
to limit recognition to heterosexual marriages only.
● The
Special Marriage Act of 1954
provides a civil form of marriage for couples who cannot marry under their
personal law.
Same-sex Marriage:
● Same-sex
marriage is marriage between partners of
the same sex and/or gender identity. For example, a marriage between two
men or two women.
● In
the west, it is considered a civil partnership as a legally registered relationship
which offers same sex couples rights similar to those of married couples of the
opposite sex.
Judicial basis for same-sex marriage:
Decriminalization of IPC section 377 -Navtej Singh
Johar & Ors. V. Union of India (2018):
● In
this landmark verdict, the Supreme Court scrapped the controversial Section
377– a 158-year-old colonial law on consensual gay sex.
● Section 377, which is
part of an IPC 1861, banned “carnal
intercourse against the order of nature with any man, woman or animal” - which
was interpreted to refer to homosexual sex.
● The
Supreme Court reversed its own decision and said Section 377 is irrational and arbitrary.
Centre’s Earlier Stance:
1. Opposition:
● In
2021, the central government had opposed same sex marriage in Delhi High Court
citing it against the provisions of the Special Marriage Act, 1954.
2. Consider biological gender:
● It
stated that the marriage in India can be recognised only if it’s between a
biological man and biological woman capable of producing progeny.
3. Societal morality clause:
● In
its argument, the central government had also said that considerations of
“societal morality” are relevant in considering the validity of a law.
4. Claiming responsibility:
● It
argued that it is for the legislature to enforce such societal morality and
public acceptance based upon Indian ethos.
Reasons behind Centre’s Opposition:
1. Legal revamp required:
● The
registration of marriage of same-sex persons also results in a violation of
existing personal as well as codified law provisions such as ‘degrees of
prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual
requirements’ under the personal laws governing the individuals”.
2. Definition of spouse:
● In
a same-sex marriage, it is neither possible nor feasible to term one as
‘husband’ and the other as ‘wife’ in the context of the legislative scheme of
various personal laws.
3. Against cultural norms:
● The
social order in our Country is religion based which views procreation as an
obligation for the execution of various religious ceremonies.
4. Property and other civil rights:
● Property
rights post marriage is a much contested issue in India. Same sex marriage will
not create any immunity for the law but increase complex interpretations.
Issues with Same-sex Marriages:
The
issue of homosexual conduct to this fore in recent legal and political debate
for main reasons, which are as follows:
1. Morality:
● This
has brought with it a change in social attitudes, so that the stigma attached
to the homosexuality has to a greater extent disappeared.
2. Rising activism:
● Campaigns
for lesbian and gay rights taken on an increasingly radical character, arguing
for an end to all forms of discrimination against homosexuality.
3. Religious sanctions:
● Same
sex acts are punishable by death in Arab countries. No religion openly embraces
same sex marriage. More or less, they are considered un-natural everywhere.
4. Social stigma:
● Apart
from the harsh legal scenario, homosexuals face social stigma as well. Same sex
marriages are still unimaginable as any instance of sexual relations between a
couple of the same sex draws hatred and disgust.
5. Patriarchy:
● It
must not be forgotten that Indian society is patriarchal in nature and the fact
that certain women and men have different choices, which is not sanctioned by
the ‘order’, frightens them in a way.
6. Burden of collectivity:
● Our
society is very community oriented and individualism is not encouraged in the
least, any expression of homosexuality is seen as an attempt to renounce
tradition and promote individualism.
Arguments in favour for Same-sex Marriages:
1. Pursuit of happiness:
● Homosexuality
is not an offence, it is just a way of pursuit of happiness, a way to achieve
sexual happiness or desire.
2. Right to privacy:
● The
fundamental right to liberty (under Article-21) prohibits the state from
interfering with the private personal activities of the individual.
3. Arbitrariness:
● Infringement
of the right to equal protection before law requires the determination of
whether there is a rational and objective basis to the classification
introduced.
4. Issues with definition:
● Section-377
assumes that a natural sexual act is that which is performed for procreation.
Hence, it thereby labels all forms of non-procreative sexual act as unnatural.
5. Discrimination:
● Section-377
discriminates on the basis of sexual orientation which is forbidden under
Article-15 of the Constitution. Article-15 prohibits discrimination on several
grounds, which includes Sex.
6. Human rights:
● The
universal law of Human Rights states that social norms, tradition, custom or
culture cannot be used to curb a person from asserting his fundamental and
constitutional rights.
7. Recognition by many countries:
● According
to global think tank Council of Foreign Relations, same sex marriages are legal
in at least 30 countries, including the United States, Australia, Canada and
France.
WAY FORWARD:
1. Dissociating from religion:
● Such
marriages are forbidden in almost every religion. Hence no single religion
should be considered a hindrance in creating a legal sanction.
2. Doing away with discrimination:
● The
same-sex community needs an anti-discrimination law that empowers them to build
productive lives and relationships irrespective of gender identity.
3. Letting the society evolve:
● The
society has to imbibe the doctrine of progressive realization of rights and it
cannot be forcibly convinced by law.
4. Creating awareness
in the society regarding perception of same-sex marriage.