The Supreme Court of India has recently taken up a plea made by two homosexual couples who are seeking recognition for their same-sex marriage. This plea is centered on the Special Marriage Act, 1954, and its application to individuals within the LGBTQ+ community.
Supreme Court’s Intervention
Under the leadership of Chief Justice of India D Y Chandrachud, the Supreme Court has issued a notice to both the Centre and the Attorney General for India in response to this plea. The petition argues that current legislation does not recognize same-sex marriage, a form of discrimination that challenges the self-fulfillment and dignity of LGBTQ+ couples.
Petitioners’ Arguments
The petitioners argue that the Special Marriage Act, as it stands, is ultra vires (beyond the powers) of the constitution when it discriminates between homosexual and heterosexual couples. They maintain that the Special Marriage Act should apply equally to all individuals, regardless of gender identity or sexual orientation. Denying same-sex couples both legal rights and the social recognition that stems from marriage violates fundamental rights such as equality and a dignified life.
Lack of Progress for LGBTQ+ Community
At present, the LGBTQ+ population makes up 7% to 8% of India’s overall population. Petitioners claim that decriminalizing homosexuality is not enough progress and that equality should extend to every sphere of life, including workplaces, public places, and homes, for LGBTQ+ individuals.
Legality of Same-Sex Marriages in India
The right to get married is not specifically recognized as either a constitutional or a fundamental right under the Indian Constitution. Various statutes regulate marriage, but the recognition of it as a fundamental right has primarily come through judicial decisions made by the country’s Supreme Court.
Supreme Court’s Views on Same-Sex Marriages
In the case of Shafin Jahan v. Asokan K.M. and others (2018), the Supreme Court held that choosing a marriage partner is integral to Article 21 of the Constitution. According to Article 16 (2), there cannot be discrimination based solely on grounds of religion, race, caste, sex, descent, place of birth, residence or any of them.
LGBTQ+ Community and Constitutional Rights
In Navtej Singh Johar and others v. Union of India (2018), the Supreme Court held that members of the LGBTQ+ community have the same range of constitutional rights as other citizens, including equal citizenship and protection under law.
About the Special Marriage Act, 1954
Marriage in India can be registered under various personal laws such as the Hindu Marriage Act, 1955, Muslim Marriage Act, 1954, or the secular Special Marriage Act, 1954. The Special Marriage Act allows people of different religious backgrounds to marry and protects the rights of both husband and wife. Unlike personal laws, marriages solemnised under this Act are governed by the Act itself.
Way Forward
The LGBTQ+ community needs an anti-discrimination law to enable them to build productive lives and relationships irrespective of their gender identity or sexual orientation. The responsibility for change must lie with the state and society, not the individual. Considering that more than two dozen countries have legalized same-sex marriage, granting same-sex couples in India the fundamental right to marry a person of their own choice is a logical next step.
