Same-sex marriage Conflict of Personal and collective Rights - Daily Current Affair Article

References

Recently, in the case of some petitions, the Central Government has submitted its stand against same-sex marriage in the Delhi High Court.

Background

  • After the Supreme Court has decriminalized homosexuality, demands have arisen regarding the recognition of same-sex marriage. Recently some people belonging to the LGBTQ community appealed to the Delhi High Court to recognize the marriage between any two people under the Special Marriage Act without considering what their gender is.
  • A bench of two judges sought a response from the central government, on which the central government has submitted its affidavit against same-sex gay marriage.

What is homosexuality: -

Homosexuality is generally defined as the attraction between people of the same sex by nature or love, but it is a narrow definition of homosexuality.

There are several categories of flour mainly in the gay category which are described as follows -

  • Lesbian - A woman's attraction to another woman
  • Gay - One man's attraction towards another man
  • Bisexual - Attraction towards both (same and opposite) sexes
  • Transsexual - Changes in the opposite sex of the natural sex
  • Queer - They are not confident about their sexual attraction.

These categories are collectively combined with LGBTQ. They are said to represent the gay category.

Arguments in favor of same-sex marriage

  • The following arguments have been made by the gay community in favor of gay marriage
  • Articles 15, and 16 of the Indian Constitution prohibit discrimination based on gender, but these rights are often violated in society.
  • Person with Same-sex marriage is denied from property, insurance, and family rights.
  • Under Article 19 1 (a), the person has the right to freedom of sexual expression. But in the case of gay marriage, this right should not be used.
  • Many times, physical or mental violence is also used by conservative elements of the society on same-sex couples.
  • Thus same-sex marriage hinders the use of fundamental rights, social rights, family rights of the person. Therefore, same-sex marriage should be recognized under the Special Marriage Act, so that they can get their rights.

Central government's view in court (argument against the same-sex marriage)

  • It is clear in the definition of marriage by Parliament that marriage in India can be recognized only when there is a marriage between a "biological man" and a "biological woman" capable of bearing a child.
  • In India, marriage is not considered to be a sexual necessity but a sacrament that is indicative of the sanctity of marriage.
  • The concept of marriage in Indian society is based on a husband, a wife, and a child, which cannot be compared with a gay family.
  • It has been criminalized by the Hon'ble Supreme Court. This does not confirm gay marriage or conduct to be a fundamental right.
  • The power of amendment in the Special Marriage Act-1954 or Hindu Marriage Act-1955 is vested in the legislature and not in the judiciary. Therefore, the legislature can consider the status of recognizing this type of marriage while balancing the social morality and independence of the individual.

Development of LGBTQ rights in India

  • Although this community existed in ancient and medieval times, but due to the predominance of social rules, they kept their identity secret. After the recognition of gay rights in the Netherlands in 2001, the demand for gay rights in India increased when a petition was filed by the Nudge India Foundation in 2001 in the Delhi High Court.
  • In 2009, the Delhi High Court excluded homosexual acts from criminal acts but in 2013 the Supreme Court changed the decision of the Delhi High Court.
  • In 2016, the matter was referred to a 5-member Constitutional Bench. In the decision of the Constitutional Bench, the provision of homosexuality of section 377, concerning the relationship of two adults as private, was abrogated.

Indian Society and Homosexuality

  • In ancient Indian texts, the word kinnar probably referred to the gay community. It is written in a Sukta of the Rigveda that "Vikrith Ewa Prakritih" means that what is unnatural is also the gift of nature.
  • Over time, due to the increasing demand of the son in certain religious beliefs and social needs, the relationship of the biological man and the biological woman started to get social recognition, which led to a decline in the social status of homosexuals. Today, even after the decision of the Supreme Court, the gay community is a victim of neglect in society.

The conclusion

Homosexual groups constitute around 8% in India, meaning they have a population of over 10 crore. There is a need to be careful while taking decisions regarding such a large population. Along with that, it is also necessary to strike a balance between a rapidly changing society and individual rights. Indian courts have often given judgments in such circumstances by balancing progressive society and individual rights. This time too, a decision should be given keeping both views in mind.

General Studies Paper 2
  • Polity and Social Justice
  • Separation of powers between different components, dispute resolution mechanisms, and institutions.
  • Welfare schemes for the most sensitive sections of the population by the Center and the states and the performance of these schemes; Mechanisms, laws, institutions, and bodies set up for the protection and betterment of these very sensitive sections.

Mains Question:-

  • Even after the decision of the Supreme Court, the LGBTQ community is a victim of neglect in society. Do you agree that the recognition of same-sex marriage will help improve this situation? Give an argument in favor of your answer?