Rights to privacy and marriage are fundamental elements of the constitution that safeguard the liberty of individuals. The preliminary understanding of these rights is especially important in the context of Section 377 of the Indian Penal Code and the Special Marriage Act (1954). This background knowledge forms the foundation for further discussion on more complex concepts such as same-sex marriages and civil unions.
Contesting Same-Sex Marriages Legality in India
The idea of legalising same-sex marriages in India has ignited discussions and debates across various platforms. One of the critical events that brought this issue into the limelight was when the government contested the hearing of petitions seeking legal sanction for same-sex marriage by the Supreme Court. The argument was based on the judiciary’s right to confer legal recognition on the “socio-legal institution” of marriage—something that had not been done before in the country.
An Introduction to Civil Unions
Civil unions, in the simplest terms, are legal statuses that offer certain rights and responsibilities to same-sex couples, mirroring those given to heterosexual couples in a marriage. These rights encompass areas including employment, inheritance, property, and parental rights. However, there are notable differences between civil unions and marriages, especially in terms of their religious recognitions and the legal protections they provide.
Civil Union vs Marriage
A civil union is essentially a marriage-like sanction provided to two individuals, generally of the same sex, which differs from the traditional concept of marriage. The latter is a religious institution recognised by law, typically involving a man and a woman. Therefore, civil unions have been devised to grant similar legal protection to couples opting for same-sex marriages, a concept outside the scope of the religion-based definition of marriage.
Status Quo on Same-Sex Marriages in Other Countries
Various countries, such as the United States and Sweden, legalised same-sex marriages and recognized civil unions before India. The Supreme Court of the United States (SCOTUS) legalized same-sex marriages across the nation in 2015 with its landmark ruling in “Obergefell v. Hodges”. Similarly, Sweden granted LGBTQ couples the right to apply for civil unions and enjoy benefits like the right to adopt before legalising same-sex marriages in 2009. Other countries such as Brazil, Uruguay, and Chile have also recognised the rights of same-sex couples to enter into civil unions, preceding their formal recognition of the legal right to marriage.
Current Status of Same-Sex Marriages in India
Despite the decriminalization of homosexuality under Section 377 of IPC by the Supreme Court in the Navtej Singh Johar vs Union of India case in 2018, India has yet to legally recognize same-sex marriages. Nonetheless, numerous petitions have been filed before the Supreme Court, pushing the judiciary to consider the scope of civil unions under the Special Marriage Act, 1954.
Key Supreme Court Judgements on LGBTQ Rights
Several groundbreaking judgements have been passed by the Supreme Court concerning LGBTQ rights. The judgments include KS Puttaswamy v Union of India (2017), which ruled that an individual’s sexual orientation falls within their right to privacy; Navtej Singh Johar vs Union of India (2018) where it was opined that there cannot be discrimination in law based on sexual orientation and gender; and Deepika Singh vs Central Administrative Services (2022) where the definition of a family was expanded to include unmarried partnerships or queer relationships.
Favourable and Unfavourable Arguments on Legalising Same-Sex Marriage
There are ongoing arguments both in favour and against the legalisation of same-sex marriage in India. Supporters argue that ‘gender’ has a wider definition that extends beyond physical anatomy, change is a fundamental law of nature and society, legal complications would be minimized, and equality would be upheld for all couples regardless of sexual orientation. Critics, on the other hand, express concerns about societal acceptance, potential issues arising from broadening the scope of the term ‘gender’, and potential legal complications.
UPSC Civil Services Examination: Relevant Questions
In the 2019 UPSC Civil Services Examination, candidates were asked to identify which article of the Indian Constitution safeguards an individual’s right to marry the person of their choice. The correct answer was Article 21. This question reflects the relevance and importance of this issue in the context of constitution and law in India.
