By Tisha Agarwal & Shreyanshu Kumar, School of Law, Christ University, Bengaluru.
In the 1970s, feminist scholars adopted the term gender to distinguish between "socially constructed" aspects (gender) and "biologically determined" aspects (gender) of the difference between men and women. The need to understand the importance of an egalitarian society came after the Second World War. Thus, many LGBTQ movements started catching attention across the globe, and it was in 2001, the Netherlands became the first country to give marriage rights to same-sex couples, followed by 29 other countries.
The first stone of legalising same-sex marriage was laid down in the case of case Obergefell v. Hodges. The issue which was raised before the court was whether the fourteenth amendment requires the States to licence a marriage between same-sex couples. The court ruled in this case that the right to marry is a fundamental right inherent in an individual's liberty and that same-sex couples may not be denied that right and liberty under the Fourteenth Amendment.
In India, traces of same-sex couples were found right from the Rig Vedic period. Indian Society has been tolerant and liberal concerning the status of same-sex couples, but the recent changes in English laws have made homosexuals demand more rights for them. Same-sex marriage in India primarily gained its importance when Section 377 was decriminalised in Navtej Singh Johar v. the Union Of India. Even though International Laws like Article 16 of UDHR talk about the rights of adults to get married. The Constitution of India never mentions the right to marry as a fundamental right, but this has evolved over time with judicial pronouncements. Though, the right to marry to same-sex couples can be given by adding an amendment clause under Special Marriage Act 1956, providing benefits to LGBTQ couples in a multi-dimensional manner.
One of the most prominent cases that is looked forward to is the Abhijit Iyer Mitra v Union of India. A petition filed by Abhijit Iyer argues for the registration of LBGTQI marriages under the HMA because the language of the statute is gender-neutral and provides no explicit prohibition of same-sex marriages. The petitioners said that depriving LGBTQ couples the right to marry is a blatant breach of Articles 14 and Article 21 of the Indian Constitution. It is also violative of several international covenants, including the UDHR, ICESCR, and ICCPR. The respondents replied that legal recognition of marriage is a legislative matter that does not fall under the jurisdiction of the judiciary. In response to the argument that Article 21 was violated, the Centre argued that the clause is subject to limitation through the procedure established by law. Therefore, a verdict was passed in favour of the state, making same-sex marriage illegitimate, and the same has been continuing since then. Merely decriminalising Section 377 of the IPC has not given marriage rights to same-sex couples.
CJI DY Chandrachud is hearing the ongoing case on Same Sex marriage. Senior advocate prayed for a twofold relief. First, he requested that marriage be explicitly recognised as a fundamental right for LGBT individuals, as provided for in Articles 14, 19, and 21 of the Indian Constitution. Indian Constitution. Secondly, the same should be recognised with proper amendments in the Special Marriage Act . The petitioner used the preamble to state that rights are available for all individuals, and when all other rights are being made available to homosexuals, restricting the right to marry makes no sense. Some significant judgments relied on were Navtej Singh Johar v. Union Of India, Justice K.S. Puttaswamy (Retd) v. Union Of India, and Anuj Garg & Ors v Hotel Association Of India, among others, to establish the same. The petitioner also cited the example of developed countries like the UK and the US, where this queer community has been given all the rights of a heterosexual society. The respondents here have stated that marriage is a social institution that establishes the relationship between two people of different sex, and marriage has historically been defined as a union between a man and a woman and that changing this definition undermines the institution of marriage.
They argue that redefining marriage to include same-sex couples may have unintended consequences for society. Another point of view is that marriage is primarily intended for procreation and childrearing. Opponents of same-sex marriage believe that because same-sex couples cannot procreate naturally, they should be denied access to the institution of marriage. They believe that children are best raised in a conventional family structure by a mother and father. The respondent contended that legalising same-sex marriage would be a violation of personal laws and other codified laws. The respondents further objected to the inclusion of same-sex marriage in the Special Marriage Act since the statute only addresses inter-caste or inter-religious marriages between biological men and biological women. This issue directly impacts society, so the legislature, which recruits the representatives who belong to the community, should have the right to decide whether same-sex marriage should be legalised or not. They also stated that there needs to be a clear picture of how many genders come within the ambit of this plus (+). Currently, 107 gender identities are listed. So, the inclusion of same-sex marriage in a particular marriage act can lead to so much confusion.
The Supreme Court of India decriminalised same-sex relationships in 2018 with the historic Navtej Singh Johar judgement. This landmark ruling opened up paths for same-sex marriage in India, though it is not yet legal. Arguments in favour of same-sex marriage include equal rights for all citizens, despite of their sexual orientation. Despite opposition, the global trend towards legalising same-sex marriage is growing, with nations such as Canada, the United States, and several European countries leading the way. The fight for same-sex marriage is ongoing, but progress is being made toward equality and inclusion for all individuals. From the respondents' arguments, it is clear that the state is concerned about the negative impact of same-sex marriage will have on Indian society. Indian society is still not ready for such a significant change in the social structure. Hopefully, the judiciary will come up with a solution that will give rights to marriage to same-sex couples and to take care of the moral and social beliefs of Indian society.
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Very well explained
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