Indian society is a cluster of various cultures, religions, philosophies, ideas. After Navtej Singh Johar verdict, LGBT community demanded for more rights such as marriage rights. This became a matter of hot debate and tension among the members of complex Indian society. Not only this, this causes some crisis between the judiciary and union government. The Supreme Court is hearing this matter and hope it will deliver the judgment soon.
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"Reminded of Will and his moms on the day we passed marriage equality in MD. There's no greater human right than love"
– Martin O'Malley, Former governor of Maryland.
Rights are meant for all irrespective of gender, sex, sexuality class, caste, religion etc. But the LGBT community is facing a lack of some basic rights which help them to live a good and respectful life in society. Mere revocation of the IPC 377 section will not help them to live a life with dignity. They need props as well as ladders. So, basic rights include marriage, adoption, health, education, employment opportunity etc. Nowadays, same-sex marriage is a matter of great concern in India. This caused a dilemma in society and some clashes of ideas and conflict between the Supreme Court and the Union government.
The hot button issue of Same-sex marriage or marriage equality, garnered the attention of many news agencies as the Supreme Court of India referred petitions seeking the legal recognition of same-sex marriage to a 5 judge Constitution bench. The question of "biological man, woman and child" was argued before the Hon'ble SC Constitution bench. According to The Indian Express- one of the most popular newspapers in India published that Law Minister (Now former law minister) Kiren Rijiju argued that marriage is a matter of policy to be decided by Parliament and the executive alone.
An Overview of the LGBT Community, IPC Section 377, and the Importance of Recognizing Same-Sex Marriage
According to the Oxford Dictionary, Homosexuals as a unit are those whose sexual preference is of the same sex. LGBT is an abbreviation that stands for lesbian, gay, bisexual, and transgender.
Lesbian - Lesbian refers to women who are sexually attracted to women only.
Gay - Gay refers to men who are sexually attracted to men only
Bisexual - A bisexual person is one who is attracted to both men and women
Transgender - Transgender people have a gender identity or gender expression that
differs from their sex assigned at birth. For an example, if a person is born with a penis that means he is a man but he expressed himself as the opposite gender i.e female
Queer- To recognize this inclusion, a popular variant, LGBTQ, adds the letter Q for
those who identify as queer or are questioning their sexual or gender identity.
LGBTQIA+, where + represents those who are part of the community, but for whom
LGBTQ does not accurately capture or reflect their identity.
IPC Section 377 states that
Unnatural offenses. —Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation. —Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section. This law was enacted by the British Raj in 1861 and criminalized the same-sex relationship and this law which criminalized the same was repealed by the British government in Britain in 2000 and India decriminalized this in 2018 only in Navtej Singh Johar Vs Union of India (more than 150 years).
According to senior advocate of Supreme Court Menaka Guruswamy and other LGBT activists, merely the revocation of IPC 377 does not meet the needs of this marginalized section of our country. They still face many social and psychological problems. Where the Navtej Singh Johar vs Union of India verdict was the base for the rights of homosexual beings, same-sex marriage recognition is one the need as well as a right of them. Non-recognition of these not only abridges their ordinary rights but also basic rights such as the right to live with dignity. The Navtej Singh Johar verdict became a milestone for this issue and dilemma, marking the commencement of a revolutionary legal battle that came to light in November 2022.
Tracing the legal case history
Two same-sex couples petitioned before the SC on November 14, 2022, requesting that same-sex marriages be recognised as legal in India under the SMA 1954- Special Marriage Act of 1954. Supriyo Chakraborty and Abhay Dang filed the initial petition, which was followed by Parth Phiroze Merhotra and Uday Raj Anand.
The petitioners contend that only "male" and "female", that is only biological male and biological women marriages, are recognised by Section 4(c) of the Act. The non-recognition of same-sex marriage, and denying Homosexual couples the privileges of adoption, surrogacy, employment, and retirement benefits, and these discriminate against same-sex couples. The petitioners further submitted before the bench that the denial of same-sex marriage constitutes a violation of numerous fundamental rights, such as the rights to equality, freedom of speech, and dignity. They mentioned the recent cases which were ruled in favour of homosexual - NALSA v. Union of India (2014) and Navtej Singh Johar v. Union of
India (2018), rulings that validated non-binary gender identities and gave homosexual people equal rights.
After these furious and most debatable arguments made by the petitioners, CJI took this matter into consideration and many series of events started occurring to deliver justice and to break this deadlock situation. Many law websites and newspapers started publishing these events on their websites daily. The brief of these events are follows-
The Supreme Court bench led by Chief Justice D.Y. Chandrachud and Justice Hima Kohli issued an order on November 25, 2022, directing the Union to respond to the petitions. Similar petitions were pending before the Delhi and Kerala High Courts. Two senior solicitors, Menaka Guruswamy and Karuna Nundy, requested that two related petitions that were pending before the Delhi and Kerala High Courts be transferred to the Supreme Court on January 3, 2023. The two-judge bench, which was made up of CJI Chandrachud and Justice P.S. Narasimha agreed, and the transfer petitions were added to the main petition's list.
On January 6, 2023, a three-judge bench, led by Chief Justice D.Y. Chandrachud and including Justices P.S. Narasimha and J.B. Pardiwala, transferred nine pending cases from the Delhi and Kerala High Courts that dealt with related matters to itself. On March 13th, 2023, a 3-Judge Bench led by CJI D.Y. Chandrachud referred the case to a 5-Judge Constitution Bench. This Bench started hearing the case from April 18th, 2023.
Different stands for the recognition of marriage equality - Arguments in the SC
Many arguments were made during the hearing on this. Some of the arguments are taken here.
Union Government through solicitor general: SGI- Solicitor General of India made a similar argument made by Kiren Riju. He questioned before the bench that the right of socio-legal recognition should be given by a judicial order or legislation by parliament. They seek the views of all states on legalising same-sex marriage. According to them, marriage is an 'urban elitist' concept which was this claim later rejected by the Hon'ble bench since this claim was made in the absence of any statistics or survey. He also stated the concern over gender fluidity which is something difficult to understand by a layman. According to him, Gender is fluid and took several forms, an aspect that would prove to be impossible to accommodate in statutes.
Supporters: Marriage is not only a question of dignity but it is also the bouquet of rights that LGBTQ people are being denied like the right to equality, freedom, adoption rights etc. Advocates argued that there is a need to broadly read 'spouse' in place of 'man and woman' or 'husband or wife'. The concept of marriage has changed over the lapse of the last 100 years. Many things like child marriage, temporary marriage, and multiple marriages also change. They urged that same-sex relationships should have rights similar to heterosexual people. They need protection from both the state as well as non-state actors.
CJI DY Chandrachud: The statements made by CJI are something that feels that he is in favour of same-sex marriage. According to him, the state cannot discriminate against an individual based on a characteristic over which a person has no control. There is no absolute concept of biological man and woman in actual nature. It is far more complex than the genitals. No data is forthcoming from the government to indicate this is urban or anything, no data at all. Indian Culture Extraordinarily Inclusive, British Victorian Morality Code (which also imposed IPC section 377 ) was imposed on us.
Image Credit : Deccan Herald
Child bodies on adoption rights
Same-sex marriage is also concerned with adoption rights. Meanwhile, two different and famous child-rights bodies have expressed contrary opinions on the issue of same-sex marriage.
The adoption of children by same-sex parents is comparable to "endangering children," according to the National Commission for the Protection of Child Rights (NCPCR), an organization of the Union government that has opposed the arguments. According to the body, this causes traumatic psychological and social impacts on the children. It has been stated that same-sex parents could not be exposed to many typical gender role models. If there is a gay couple then who will perform the duty of the father and who will perform the duty of the mother? As a result, the panel has stated, children's exposure would be restricted and their entire personality development would be in high danger.
The Delhi Commission for Protection of Child Rights (DCPCR), which comes under the Delhi government, has supported both same-sex marriages and gay couples' adoptions. According to the report, there is no factual evidence to support the claims which was cited by the NCPCR that same-sex couples are unsuited to be parents or that the psychological development of their offspring is hampered.
'What Happens When A Child Of Heterosexual Couple Sees Domestic Violence?': CJI DY Chandrachud on concerns over adoption by queer couples. This brings the question to the mind of many people do heterosexual parents provide a good environment for their children?
Marriage equality across the globe
As of now, 34 countries legalized same-sex marriage including developed nations like the USA, Canada, Brazil, the UK, Germany etc. and gave marriage equality to around 17% of the world population.
In Obergefell v. Hodges, the Supreme Court of the USA ruled that the fundamental right to marry and the equal protection clause of the 14th Amendment of the US Constitution. This 5–4 recognizes the marriages of same-sex couples on the same terms and conditions as the marriages of opposite-sex couples, with all the accompanying rights and responsibilities.
Conclusion
Image Credit: Adobe stock
Same-sex marriage is not only the right but the need of the LGBT+ community. Many things were not permitted in religious institutions like abortion later on its permitted. The judiciary and Indian constitution are custom breaks like banning child marriage, Sati, and triple tallak which were permitted in rituals of a different religion. So, same-sex marriage can be permitted by law of land. In ancient Indian texts, there were narrations on same-sex relationships like Vishnu and Shiva, Arvan, etc. Any definition cannot be so rigid that it cannot be changed according to society and time. The forefathers of the Indian Constitution made the Supreme Court as its guardian and made it also responsible for the rights and needs of every marginalized section of the society. Many developed countries, even colonial nations like Britain, legalized marriage equality. The rights of this community were alway suppressed by the majority. Every decision cannot be left out on the people or the legislation especially where many people are against it from the beginning. Some say the Gender Fluidity revolution became drastic, some say it is against the order of nature, and some say some more things. It is expected that the Supreme Court will give the verdict after the vacation. During this time, justices can sincerely evaluate the whole matter and can write this judgment. At last, "What is right, what is wrong, who knows? Rights always rule and the supreme court will make that rule".
By- Jatin Gupta
Jatin Gupta is a 2nd-year student from Shri Ram College of Commerce. He has specialization in writings in various arenas such as politics, history, sociology, psychology and spirituality, He regularly publishes articles on various social and political issues around the globe on various platforms. Also, he is an amateur poet and published his many poems in various magazines. Some famous writings are Ghar ghar ki kahani : Comparing Children, Partition – story of two nations etc.
References
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Datta, S. (2023, March 19). Explained | What is India’s stand on same-sex marriage? https://www.thehindu.com/news/national/explained-what-is-indias-stand-on-same-sex-marriage/article66636166.ece
Law, L. (2022, November 25). Live law. Live Law. https://www.livelaw.in/top-stories/supreme-court-seeking-recognition-of-same-sex-marriage-under-the-special-marriage-act-214994
United Nations. (n.d.). LGBTQI+ | United Nations. https://www.un.org/en/fight-racism/vulnerable-groups/lgbtqi-plus
Supreme Court Observer. (2023, July 5). Plea for marriage equality - Supreme Court observer. https://www.scobserver.in/cases/plea-for-marriage-equality/
Livelaw. (n.d.). Read all Latest Updates on and about Same-Sex Marriage. Livelaw. https://www.livelaw.in/tags/same-sex-marriage
SUPREME COURT OF INDIA. (n.d.). https://main.sci.gov.in/
Court 1 live proceeding on youtube https://www.youtube.com/@supremecourtofindia5950/videos
Indian Kanoon. (n.d.). Indian Kanoon. https://indiankanoon.org/
OBERGEFELL v. HODGES. (2015, June 26). LII / Legal Information Institute. https://www.law.cornell.edu/supremecourt/text/14-556
Anand, N. (2023b, April 18). List of countries where same-sex marriage is legal. Hindustan Times. https://www.hindustantimes.com/world-news/supreme-court-same-sex-marriage-hearing-list-of-countries-where-same-sex-marriage-is-legal-101681798846639.html
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