What Is Same-Sex Marriage Plea? All About The Batch Of Petitions Supreme Court Is Hearing
Same-Sex Marriage: Same-sex marriages continue to be unrecognised by Indian laws even though homosexuality was decriminalised by the Supreme Court in 2018.
The Supreme Court is hearing the final arguments Tuesday on a raft of petitions seeking to legalise same-sex marriage. The hearing of the matter, which Chief Justice DY Chandrachud has said is of "seminal importance", will be "live streamed in public interest".
Earlier this year in January, a three-judge SC bench transferred nine pending petitions dealing with similar issues from the Delhi and Kerala high courts to itself. On March 13, the three-judge bench led by CJI DY Chandrachud referred the case to a five-judge Constitution bench.
Even though homosexuality was decriminalised by the Supreme Court in 2018, same-sex marriages continue to be unacknowledged and unrecognised by Indian laws. Both the Centre and the ruling BJP have opposed legal validation of same-sex marriage.
The matter holds significance for a country that is home to 2.5 million LGBTQ+ people, according to data available in public domain. Global estimates believe the population to be more than 135 million.
A favourable decision from the Supreme Court will make India the 35th country in the world to legalise same-sex marriage, BBC reported. The Netherlands was the first country in 2001 to legalise same-sex marriage by amending one line in its civil marriage law.
ABP EXCLUSIVE: A Question Of Fundamental Rights, Not Just About Queer People, Petitioners Say
What Is The Case?
Last year in November, two same-sex couples filed writ petitions in the apex court seeking legal recognition of same-sex marriages in India. The petitions, centred around the constitutionality of the Special Marriage Act, 1954, were filed by Supriyo Chakraborty and Abhay Dang and Parth Phiroze Merhotra and Uday Raj Anand.
The Special Marriage Act allows civil marriage for couples who cannot marry under their personal law.
The petitioners argued that Section 4(c) of the Act recognises marriage only between a "male" and a "female" and thus discriminates against same-sex couples. They contended that they were deprived of matrimonial benefits such as adoption, surrogacy, employment and retirement benefits. The petitioners asked the top court to declare Section 4(c) of the Act unconstitutional.
Their plea has now been tagged with a number of other petitions challenging other personal laws on similar grounds, including the Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969.
It must be noted that personal affairs such as marriage and divorce are governed by laws specific to communities in India. For example, Hindu Marriage Act applies to Buddhists, Sikhs, Jains, and all the sects of Hinduism.
The petitioners have also argued that non-recognition of same-sex marriage violates their rights to equality, freedom of expression and dignity.
How Will Legal Recognition Of Same-Sex Marriage Help LGBTQ Community?
Despite the decriminalisation of Section 377 of the Indian Penal Code (IPC), LGBTQIA+ couples do not enjoy the rights married couples do. Thus, gay couples living together cannot adopt children or have a child by surrogacy. They also do not have automatic rights to inheritance, maintenance and tax benefits.
Moreover, after a partner passes away, they cannot avail benefits like pension or compensation. The petitioners have also referred to a host of legislations that provide benefits solely to legally wedded spouses like the Payment of Gratuity Act 1972, Payment of Wages Rules, 2009, the Employee's Provident Fund Scheme 1952, the Pradhan Mantri Shram Yogi Maan Dhan Yojana, the Indian Evidence Act, 1872, the Juvenile Justice Act, 2015.
What Have Courts Said On This Matter In The Past?
The petitioners have cited the NALSA vs Union of India (2014) and Navtej Singh Johar vs Union of India (2018) verdicts that recognised non-binary gender identities and guaranteed equal rights to homosexual persons.
In the Navtej Singh Johar case, the court had held that members of the LGBTQ community were entitled to "full range of constitutional rights, including the liberties protected by the Constitution".
"Sexual orientation is natural. Discrimination on the basis of sexual orientation is violation of freedom of speech and expression," a five-judge Supreme Court bench, which CJI Chandrachud was also a part of, had stated.
The judgment had noted that gay people had the right to live with dignity and were "entitled to protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them".
In the 2014 NALSA vs Union of India judgment, the court had said that non-binary individuals were protected under the Constitution and fundamental rights such as equality, non-discrimination, life, freedom and so on could not be restricted to those who were biologically male or female.
What Is The Government's Stand?
The BJP-led Centre has rejected petitions for legalising same-sex marriage, stating it would disrupt personal laws and societal values. In an affidavit before the top court, the Centre has termed the petitions as one that reflect an "urban elitist" view.
The Centre said recognition of marriage was a legislative function and the courts should refrain from deciding on it.
"The competent legislature will have to take into account broader views and voice of all rural, semi-rural and urban population, views of religious denominations keeping in mind personal laws as well as and customs governing the field of marriage together with its inevitable cascading effects on several other statutes," the Centre said.
Last month, 21 retired high court judges, in an open letter, said legalisation of same-sex marriage would have a "devastating impact on children, family and society".
The judges said allowing same-sex marriage could increase the incidence of HIV in India and expressed concern that it could "negatively affect the psychological and emotional development of children raised by same-sex couples".
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