On Monday, the Supreme Court directed that a five-judge bench will hear a clutch of petitions relating to same-sex marriages.
Since November, several petitions have been pending before the Supreme Court challenging the constitutionality of several laws that allow for marriage only between heterosexuals. While the petitioners have argued that these provisions are discriminatory against the LGBTQ+ community and infringe on their fundamental right to dignity and privacy, the Centre has opposed these petitions, arguing that marriages can only be between heterosexuals.
There are 19 petitions before the apex court of India challenging various laws relating to heterosexual marriages. The petitioners include several same-sex couples who have been unable to get their marriages solemnized due to the current legal framework.
The crux of the petitioner’s case is that certain laws, such as the Hindu Marriage Act and the Special Marriage Act, prescribe that a marriage has to be between a biological man and a biological woman, therefore excluding same-sex couples. While some laws, such as the Foreign Marriage Act, which regulates the marriage of Indian citizens outside India, do not actively prohibit marriages between same-sex couples, officials have refused to register such marriages.
This, the petitioners have submitted, infringes a person’s fundamental right against discrimination, which is guaranteed under Articles 14 and 15 of the Indian Constitution. It also violates their right to freedom of expression under Article 19 and their right to privacy and dignity under Article 21.
The petitioners have stated that, over the years, the Supreme Court has granted rights to people from the LGBTQ+ community. While decriminalizing same-sex relationships under Section 377 of the Indian Penal Code, the court held that members of the LGBTQ+ community should have all the constitutional rights guaranteed under the Constitution.
Not letting them marry robs them of dignity and restricts them from fulfilling their relationship. Married couples get several privileges, such as adoption rights, inheritance claims, tax benefits, and so on, which same-sex couples cannot avail of presently. Further, the right to marry an individual of one’s own choice also falls under the right to free expression and life, the petitioners have argued.
Therefore, the petitioners have asked the court to either strike down these provisions prohibiting same-sex marriages or to interpret them in such a way, so that it accommodates non-heterosexual marriages also.
Why Centre Opposes Same-Sex marriage?
In an affidavit submitted on Sunday, the Union government has opposed all these petitions. It has argued that marriage “presupposes a union between two persons of the opposite sex” and that the law explicitly mentions marriage has to be between a “biological man and a biological woman”. These laws, it submitted, are based on customs, rituals, and societal practices. According to the government, same-sex marriages contravene the “Indian family concept” of marriages being heterosexual.
Since the laws are designed keeping heterosexual couples in mind, it argued, the court expanding the ambit would make these laws unworkable and also go against the legislative policy of the government. Further, it said that regulating marriages fall under the domain of the legislature and that the court should not intervene in them.
Marriages are not a private matter, the Centre submitted, but have “public significance” as well since they form the “building block of [a] society” and promote social stability. Therefore, the government is the appropriate authority to regulate such relationships.
Several other laws, such as the Indian Penal Code, provide specific rights to wives in a relationship, against domestic violence, dowry deaths, and so on. Permitting same-sex marriages will also cause difficulty in implementing these provisions, the government has submitted.
The government has also argued that not allowing for same-sex marriages does not affect any individual fundamental rights. It said that there is no fundamental right that the government has to recognize a particular form of social relationship. Presently, same-sex marriages are not unlawful, it argued. It is just that the state does not recognize these marriages.
Further, it has submitted that recognizing only heterosexual marriage is not discriminatory under the Constitution since there is an intelligible difference between heterosexual and same-sex marriages and there is a rational objective that the government wants to serve through this discrimination, that is ensuring social stability in familial relationships.
What has the court said till now?
On Monday, when the matter came up for hearing, Chief Justice DY Chandrachud said that given the “seminal importance” of the matter and the legal issues involved, a Constitution bench of five judges should hear the case starting April 18. Since all Constitution bench matters are live-streamed, the arguments will be available for the public to watch online. Earlier, when the matter was before the Delhi High Court, the petitioners wanted the hearings to be live-streamed, arguing that the case was of national importance. However, the Centre had opposed this demand.
In a previous hearing, on November 25, the court had asked the Centre to file a response to these petitions. Further, in January, the Supreme Court clubbed and transferred similar petitions to itself that were pending before High Courts in Delhi, Kerala, and Gujarat.
Countries that allowed same-sex marriages after court rulings
UNITED STATES: On 26 June 2015, the US Supreme Court in a 5:4 ruling in ‘Obergefell v. Hodges’ allowed marriage equality to become the law of the land and granted same-sex couples in all 50 states the right to full, equal recognition under the law.
The court reasoned that limiting marriage solely to heterosexual couples violates the 14th Amendment guarantee of equal protection under the law. However, 32 states had already recognized gay marriage before the ruling. In 2003, Massachusetts became the first state in the United States to legalize same-sex marriage, following a ruling by the state’s Supreme Court in ‘Goodridge v. Department of Public Health.’
TAIWAN: In 2019, Taiwan became the first Asian country to recognize same-sex marriage. A law was introduced following a court ruling and on May 17, 2019, Taiwan’s parliament passed a bill legalizing same-sex marriage. The vote in Taiwan’s Legislative Yuan or parliament came after the 2017 ruling of the Constitutional Court, striking down the traditional definition of “marriage” between a man and a woman. In its ruling, the court gave the legislature close to two years to change the country’s marriage laws.
COSTA RICA: On May 26, 2020, Costa Rica became the first country in Central America to legalize same-sex marriage following a ruling by the country’s top court in 2018, declaring the law banning same-sex marriage as “unconstitutional”. A caveat was also added that the ban would be nullified in 18 months unless the legislature acted before this. However, it did not, which led to the court’s ruling assuming significance.
AUSTRIA: The Constitutional Court of Austria, in 2017 held the denial of marriage equality to be discriminatory and legalized same-sex marriages. From January 1, 2019, same-sex marriages were allowed.
Countries that allowed same-sex marriages through legislation
AUSTRALIA, IRELAND, SWITZERLAND: Following a nationwide referendum in 2017, Australia’s Parliament passed a law recognizing same-sex marriage. The referendum showed majority support — 62 percent — in favor of the law. In Ireland and Switzerland too, a popular vote led to the formal recognition of LGBTQ. marriages.
ARGENTINA: On July 15, 2010, Argentina became the first Latin American country and the 10th country in the world to allow same-sex marriages nationwide. Even before a national law was passed, several cities and local units had allowed civil unions for gay couples.
CANADA: Same-sex couples in Canada have enjoyed the legal benefits of marriage since 1999 when the federal and provincial governments extended marriages under the Common Law to LGBTQ couples. Following this, a string of legislation on the subject commenced in 2003, making same-sex marriage legal in nine of Canada’s 13 provinces and territories. This was formally recognised on July 20, 2005, by Canada’s Parliament, which passed nationwide legislation to this effect.
GERMANY: On June 30, 2017, Germany became the 15th European country to bring in legislation allowing same-sex couples to wed. The 393 to 226 votes in the nation’s Bundestag after Chancellor Angela Merkel allowed the members of her ruling Christian Democratic Union to vote according to their conscience, leading to more than 70 members of Merkel’s conservative bloc voting for the Bill to pass.
Meanwhile, Final arguments over granting legal recognition to same-sex marriages in India will be heard on April 18 by a five-judge Constitution bench, the Supreme Court said today. Any decision on the subject would have a huge bearing on society, the Supreme Court said, calling it “a matter of seminal importance”, reported NDTV.
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