Date: 15/03/2023

Relevance: GS-2: Welfare Schemes for Vulnerable Sections of the population by the Centre and States and the Performance of these Schemes;
Mechanisms, Laws, Institutions, and Bodies constituted for the Protection and Betterment of these Vulnerable Sections.

Key Phrases: Ministry of Social Justice and Empowerment, Special Courts, LGBTQ, Same-sex marriage, Homosexuality, Special Marriage Act 1954, Supreme Court, Article 21.

Context:

• Recently, the Chief Justice of India said that children of lesbian, gay parents do not necessarily become lesbians or gays.

Key Highlights:

• Homosexual groups constitute around 8% in India, meaning they have a population of over 10 crores.
• In 133 countries homosexuality is decriminalised, but only in 32 of them same-sex marriage is legal.
• After the Supreme Court has decriminalized homosexuality, demands have arisen regarding the recognition of same-sex marriage.

Petitions Same-Sex Marriage:

• Recently some people belonging to the LGBTQ community appealed to the Supreme Court to recognize the marriage between any two people under the Special Marriage Act without considering their gender.
• The supreme court sought a response from the central government, on which the central government has submitted its affidavit against same-sex gay marriage.
• The case involved an “interplay” between constitutional rights of life, liberty, dignity, equal treatment of members of the LGBTQ+ community on one side and specific statutory enactments that consider only a married union between a biological man and woman on the other side.
• The three-judge Bench invoked Article 145(3) of the Constitution to refer the case to a five-judge Bench.
  • Article 145(3) mandates that cases involving substantial questions and interpretation of the Constitution should be heard by a Bench of at least five judges.
• Now, the hearing of the case would be livestreamed from April 18 in public interest.

Arguments in Favor of Same-sex 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.
• Right to life (Article 21) includes dignity of choice and family, marriage, procreating and sexual orientation.
  • The denial of the status of marriage to same-sex couples directly affects their right to choose a partner.
• 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.

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.

Way Forward:

• There is a need to be careful while taking decisions regarding such a large population ( around 10 crore).
• The Special marriage act is a law that was passed originally to legalize interfaith unions.
  • So same sex marriages can be recognised under the Special Marriage Act.
• It is also necessary to strike a balance between a rapidly changing society and individual rights.

Conclusion:

• Indian courts have often given judgments in such circumstances by balancing progressive society and individual rights.
  • This time too, a decision should be made keeping both views in mind.

Source: The Hindu

Mains Question:

Q. What are the arguments in favour and against for the same sex marriage in India? (150 Words).