Recently, there has been a widespread buzz in the news about the Central Government’s opposition to same-sex marriage at Delhi High Court. Their stance is firmly rooted in the belief that a marriage in India can only be acknowledged if it involves a “biological man” and a “biological woman” capable of procreating. This controversial declaration emerged after petitions were filed last year seeking recognition of same-sex marriages under the Hindu Marriage Act (HMA), 1955, and the Special Marriage Act (SMA), 1954.
The Centre’s Argument and Supreme Court’s Order on Same-Sex Marriage
In response to these petitions, the government asserted that although the Supreme Court has read down Section 377 of the Indian Penal Code, thus decriminalizing homosexual behavior, it never intended to legitimize such practices. The court merely decriminalized certain human conducts, but hasn’t necessarily sanctioned them.
The Role Of Societal Morality
The Central Government also argued that societal morality plays a pertinent role in determining the legality of a law. It stated that there exists a “legitimate State interest” in restricting marriage recognition to persons of opposite sex. Therefore, it is up to the Legislature to enforce societal morality aligned with the Indian ethos.
Dissonance with Existing Laws
Furthermore, the government argued that same-sex marriage is not compatible with laws currently in force. They maintained that while Article 21 provides the right to life, it does not extend to encompass same-sex marriage’s recognition, which contradicts existing laws. Any tampering with current marriage laws would potentially disrupt the carefully balanced personal laws in the country.
The Sacredness of Marriage
The Centre enforced the notion that the institution of marriage, perceived as a union between a man and a woman capable of bearing children, carries a certain sanctity in Indian society. Co-habitation or any form of relationship involving same-sex individuals is “not comparable” with the conventional Indian family concept.
The Legality of Same-Sex Marriage in India
Marriage, although regulated by various statutory enactments, is not expressly recognized as a constitutional right in India. Its recognition as a fundamental right has evolved over time, primarily through India’s Supreme Court decisions. Such rulings exert binding power over all courts across the nation under Article 141 of the Constitution.
Significant Supreme Court Judgments Related to Marriage
In the landmark case of Shafin Jahan v. Asokan K.M. and others in 2018, the Supreme Court ruled that choosing a marriage partner is integral to Article 21 of the Constitution. It cited Article 16 of the Universal Declaration of Human Rights and the Puttaswamy case, asserting that the freedom to marry is directly linked with liberty, which is guaranteed by the Constitution as a fundamental right.
Additionally, the Navjet Singh Johar and others v. Union of India ruling in 2018 stated that the LGBTQ community is entitled to all constitutional rights, including liberties protected by the Constitution. The judgment emphasized that they should be treated as equal citizens and receive “equal protection of law”.
Considering the Future: The Way Forward
Given this legal backdrop, it’s clear that the LGBTQ community needs an anti-discrimination law empowering them to lead fruitful lives and build relationships irrespective of their sexual orientation or gender identity. Since it has been established that the LGBTQ community is entitled to all constitutional rights, it seems evident that the right to marry a person of one’s choice should extend to same-sex couples.
