Recently, The Supreme Court has delivered its long awaited
verdict rejecting petitions to
legalize same-sex marriage and delved deeper on the provisions of the special Marriage Act 1954 to
examine the issue thoroughly, which have convergence and interrelationship with
homosexuality.
34.1 What Petitioners Argued?
Petitioners through senior advocates including Mukul Rohatgi, Abhishek
Manu Singhvi, Raju Ramachandran, Anand Grover, Geeta Luthra, K V Viswanathan,
Saurabh Kripal and Menaka Guruswamy. Have stressed on the equality rights of
the LGBTQIA+ community and pushed to acknowledge such a union which would
ensure LGBTQIA lead a “dignified” life like heterosexuals.
They
are also urging same-sex marriages to be accorded legal recognition under the
Special Marriage Act(SMA) to grant dignity to their unions, other welfare
benefits.
34.2 Observation of Supreme Court on same-sex marriage:-
A
five-judge Constitution Bench of the apex court headed by Chief Justice of
India D.Y. Chandrachud ruled in a 3:2 verdict against giving constitutional
validity to same-sex marriages. The top court said it is for Parliament to
formulate legislation on it.
The
CJI, in his opinion, concludes that the court can neither strike down or read
words into the Special Marriage Act (SMA) 1954 to include same sex members
within the ambit of the SMA 1954.The top court said it is for Parliament and
state Legislature to formulate laws on it. He also says in his opinion,
"Queerness is neither urban nor elite". CJI Chandrachud says that it
is incorrect to categorize marriage as a stagnant and unchanging institution.
34.3 Govt, States views and Global Acceptance on Same-Sex Marriage:-
On the
first day, Solicitor General of India Tushar Mehta raised preliminary
objections to the court's jurisdiction to hear this case. Later, Mehta argued
that 160 laws would be impacted in the process of bringing marriage
equality. Consequently, he said that Parliament is the only forum to make such
laws.
The Narendra Modi govt opposed same-sex unions during the hearing, saying that 'the legislative policy of India has consciously validated a union only between a biological man and a biological woman. 'In May, the government submitted in the court that it would set up a panel headed by the cabinet secretary to examine administrative steps that could be taken to address "genuine concerns" of same-sex couples. Homosexuality is deemed contrary to Indian ideals and cultural norms. The government stressed the importance of legal stability and continuity, arguing against any abrupt changes that may trigger societal instability. It was argued that legal recognition of same-sex couples may influence children and adolescents’ understanding of relationship norms. The government highlighted that same-sex relationships are decriminalized and LGBTQ+ citizens have rights, but marriage legalization is a separate issue with broader implications. The issue of adoption by same-sex couples was brought into question, raising concerns about the child’s upbringing. There are concerns that allowing same-sex marriage will create legal problems, such as issues with inheritance, tax, and property rights.
Meanwhile, the Centre informed the top court that it had received responses from seven states on the plea seeking legal recognition for same-sex marriages. While Rajasthan, Assam, and Andhra Pradesh opposed the plea, the remaining four - Sikkim, Maharashtra, Uttar Pradesh, and Manipur sought more time.
On September 6, 2018, a five-judge bench unanimously struck down Section 377 of the Indian Penal Code (IPC), and thus decriminalized same-sex marriages between consenting adults.
Same-sex marriage is legal in many countries around the world, and denying this right to individuals in a democratic society goes against the global principles.
In 32 countries, same-sex marriage is
legal. These include the United States, Canada, Australia, Argentina, South
Africa and Taiwan. In 2019, Taiwan became the first Asian country to recognize
same sex marriage. The legislation for it was brought in following a court ruling
in 2017.In most countries that do so, marriage equality was introduced by
legislation. It was recognized through a court ruling in only 10 countries.
34.4 Conclusion of Supreme Court Verdict:-
All
five judges agree there is no fundamental right to marry. Supreme court refuses
to grant constitutional validity to same-sex marriage by a 3:2 majority. Also,
no constitutional or fundamental right to civil unions.
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