Inaction and intervention: On the issue of same-sex marriage


    In Context

    • Legislative inaction on burning social issues like that of ‘same-sex marriage’ will legitimise and invite judicial intervention.

    About Same-Sex Marriage

    • Meaning:
      • It is the practice of marriage between two men or between two women.
      • Same-sex marriage has been regulated through law, religion, and custom in most countries of the world.
    • Global position:
      • A total of 32 countries around the world have legalised same-sex marriages, some through legislation while others through judicial pronouncements
      • Many countries first recognised same-sex civil unions as the escalatory step to recognise homosexual marriage.
      • The Netherlands was the first country in 2001 to legalise same-sex marriage by amending one line in its civil marriage law. 
      • Most countries in North and South America and Europe have legalised same-sex marriage
    • Legal position on the issue of same-sex marriage in India:
    • India does not recognise registered marriage or civil unions for same-sex couples.
      • Though same-sex couples can attain equal rights and benefits as a live-in couple (analogous to cohabitation) as per a Supreme Court of India judgement in August 2022.

    India’a apex Court’s position

    • The petitions:
      • Petitioners before the Court view the idea of giving legal status for marriages between people belonging to the same sex as a natural consequence of the 2018 judgment decriminalising homosexuality.
        • Navtej Singh Johar & Ors. v. Union of India, Ministry of Law and Justice (2018) is a landmark decision of the Supreme Court of India that decriminalised all consensual sex among adults, including homosexual sex.
      • The petitioners have cited that the right to marry cannot be withheld from a section of people based solely on their sexual orientation
      • The batch of petitions challenges the provisions of the Hindu Marriage Act, Foreign Marriage Act and Special Marriage Act to the extent they do not recognize same-sex marriages.
    • Supreme Court’s opinion:
      • The question before the Court is whether it should interpret provisions of marriage laws in India, especially the Special Marriage Act, 1954, as permitting marital unions between same-sex couples. 
        • The Special Marriage Act, of 1954 allows the solemnisation of a marriage between any two persons and is used by those who are unable to register their marriages under their respective personal laws.
      • Constitution bench of five judges:
        • The Supreme Court noted that legalising same-sex marriage in India is a ‘seminal Issue’ and noted that a constitution bench of five judges would further make a decision on the plea.

    Centre’s position

    • Centre has opposed in the Supreme Court a batch of pleas seeking legal validation of same-sex marriage, saying it would cause complete havoc with the delicate balance of personal laws and accepted societal values.
    •  If there ought to be such a change, it must come from the legislature.
      • The state is entitled to limit its recognition to marriages involving heterosexual couples.

    Arguments in favour of legalising Same-Sex Marriage

    • Fundamental Right: 
      • Right to marry a person of one’s choice is a fundamental right guaranteed under Article 21 of the Constitution of India.
      • Members of the LGBTQ+ community have the same human, fundamental and constitutional rights as other citizens.
    • Right to equality: 
      • The petitioners have argued that barring them from marriage violates their right to equality.
    • Global practice:
      • According to the 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.

    Arguments against Same-Sex Marriage

    • Against Biological relation:
      • Marriage in India can be recognised only if it is between a biological man and a biological woman capable of producing children.
    • Judicial interference:
      • The government has said that any interference by a court in the marital statute based on personal laws will create havoc in society and will run against the intent of Parliament in framing the laws.
    • Fundamental rights are not absolute:
      • Fundamental rights cannot be an untrammelled right and cannot override other constitutional principles.
    • Absence of civil rights issues: 
      • The 2018 judgment of the Supreme Court decriminalised homosexuality but did not get into civil rights issues. 
      • As a consequence, same-sex relationships are legal but civil rights such as marriage, inheritance or adoption, are not guaranteed to the lesbian, gay, bisexual, transgender, queer and intersex community.
    • Lack of legal framework:
      • The legal framework governing the institution of marriage in this country does not presently allow members of the LGBTQ+ community to marry the person of their choice.
      • Couples cannot protect the family, and matters like adoption, opening a joint bank account or admission of children remain uncertain on account of the failure of the law to recognise same-sex unions.

    Way ahead

    • Not an easy path:
      • Enforcing same-sex marriage in a diverse country with varying customs and traditions will not be easy. 
    • Not enough arguments to deny equal status:
      • The mere fact that many people consider marriage to be a sacrament or a holy union is not enough to deny equal status to the union of people of the same sex or to undermine its essential character as a social and economic contract. 
      • Awareness campaigns are a must to sensitise society about the rights of all individuals. 
        • As people’s relationships change, and society undergoes transformation, constitutional rights on freedoms and liberties must extend to every sphere, including a same-sex couple’s life.
    • Inaction and intervention:
      • Whether the remedy ought to take the form of recognition of same-sex marriages, and, if so, whether it should be through judicial intervention or legislative action, is the question. 
        • Legislative inaction on burning social issues will legitimise and invite judicial intervention.


    Daily Mains Question

    [Q] Analyse the centre’s stand on legalising same-sex marriages in India. What can be done to sensitise society about the rights of the LGBTQIA+ community in India?