- The CJI clarified that the hearing of a batch of petitions seeking legal recognition of same sex marriage scope would be limited to developing a notion of a “civil union” that finds legal recognition under the Special Marriage Act.
- A “civil union” refers to the legal status that allows same-sex couples specific rights and responsibilities normally conferred upon married couples.
- Although a civil union resembles a marriage and brings with it employment, inheritance, property, and parental rights, there are some differences between the two.
These civil unions would be accompanied by rights such as:
- inheritance rights,
- employment benefits to spouses,
- joint parenting or joint ownership rights, and
- the right to abstain from testifying against one’s partner
- Civil union was recognised solely by issuing states and not by federal law.
Arguments against same-sex marriage
- It’s not a democratic but instead a theological discussion.
- It was founded on conviction in religion and natural justice.
- Some don’t consider it as normal because they can’t replicate babies.
- The culture is built on marriage and partnership of men and women.
Arguments in favour of same-sex marriage
Denying marriage to them who require that implies restricting their rights, treating them unjust, physically and morally disadvantaging.
It is a punitive action that requires a sound reason to not legally allow anybody to marry.
The Government’s Opposition to Same-Sex Marriage
- The government highlighted that denying same-sex couples the right to marry was not violative of Article 14.
- This is because of the existence of an intelligible differentia between heterosexual couples and same-sex couples and a rational relation with the object sought to be achieved by the law – social stability in marriages.
- They also claimed that while Navtej Singh case upheld the privacy rights of gay individuals, it did not necessarily include the “public right” to marriage.
Key Supreme Court verdicts that moved the needle on LGBTQ rights in India:
Suresh Koushal v Union of India:
In ‘Suresh Koushal v Union of India’ the SC upheld the constitutional validity of Section 377 of the Indian Penal Code.
NALSA v Union of India
The court upheld the right of transgender persons to decide their gender and directed the Centre and state governments to grant legal recognition to their gender identity, such as male, female or the third gender.
KS Puttaswamy v Union of India
In 2017, a nine-judge Bench of the Supreme Court unanimously recognised the right to privacy as a fundamental right under the Constitution for all.
In doing so, the verdict overruled the 2013 ‘Suresh Koushal’ ruling.
Shafin Jahan v Union of India
- The SC in March 2018 set aside a Kerala High Court judgment that annulled the marriage of a 24-year-old woman who converted to Islam and married a man of her choice.
- The ruling recognised the right to choose one’s partner as a facet of the fundamental right to liberty and dignity.
- In the Asia Pacific region, progress is slow, but it is encouraging to see Taiwan and Thailand move towards greater acceptance.
- Pew survey data from 2019 shows that while social acceptance of homosexuality has risen over the years, it is still quite low in India.
SOURCE: THE HINDU, THE ECONOMIC TIMES, PIB