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Same Sex Marriage In India: Supreme Court Verdict Came as a shock

PWOnlyIAS October 17, 2023 03:34 5513 0

Same Sex Marriage In India: Supreme Court Verdict Came as a shock

Context: 

  • The Supreme Court of India has delivered its verdict on the issue of same sex marriage in India.

Background: The Journey of Same Sex Marriage in India

  • General Definition: Same sex marriage in India refers to marriages between two individuals of the same gender.
  • Opposition: Traditional religious groups have opposed homosexual marriages as they believe them to be against the natural order.
    • In some countries, homosexuality itself is criminalized and same sex marriage looks a distant dream. 

Timeline for Same Sex Marriage Right in India

  • 2001: the Naz Foundation filed a public interest litigation (PIL) in the Delhi High Court challenging the constitutionality of Section 377
  • 2009: Delhi High Court declared Indian Penal Code Section 377 unconstitutional and decriminalized homosexuality. 
    • This decision of the High Court was overturned by the Supreme Court of India in 2013, which reinstated Section 377. 
  • 2018: Supreme Court’s constitutional bench, in Navtej Singh Johar v. Union of India judgment, overturned the previous decision and decriminalized homosexuality once again.
  • 2023: Supreme Court ruled in a 3:2 verdict against legalizing same-sex marriage in India.

same sex marriage in India

 

Legalizing Same Sex Marriage in India: Debates and Challenges

  • Petition: The court was hearing a bunch of petitions, asking for legalization of Same Sex Marriage in India, citing rights of LGBTQIA+ people.
  • Opinion of States: The court had sought responses from seven states on the issue of same sex marriage in India. 
    • The governments of Rajasthan, Andhra Pradesh and Assam refused to accept same sex marriages in their respective states.

same sex marriage in India

  • Opinion of the Centre: The central government had cautioned that constitutional declaration made by the court on the petitions seeking legal validation for same sex marriage in India may have negative fallout.
    • The Centre also says that the decision on marriages can only be made by the Parliament.
  • Alternative Suggestion: The centre had also decided to form a committee headed by the cabinet secretary to examine the administrative steps for addressing “genuine human concerns” of same-sex couples without giving their union a legal recognition.

Challenges and Prospects: Same Sex Marriage in India and LGBTQ+ Rights

  • Legal Status: Currently, same sex marriage in India do not enjoy legal status in India due to rigid definition of gender in the laws.
    • India’s laws define marriage as a union between a man and a woman.
  • Associated Rights: Rights associated with marriages, such as inheritance rights, joint property ownership, and adoption rights are not provided.
  • Status of Homosexuality Law: The Section 377 of the IPC, which criminalized homosexuality, was discontinued by the Supreme Court of India in 2018. However, couples still face discrimination.
    • The Section 377 of the Indian Penal Code was introduced in 1860, which criminalized homosexual acts. 
  • Court’s Previous Opinion: The Delhi High Court in 2017 declared that same-sex couples are entitled to be in a stable relationship, but refused to legalize same-sex marriage.

Recent Supreme Court’s Verdict on Same sex Marriage in India:

same sex marriage in India

  • Beyond Scope: The court has said that the issue of same-sex marriage was beyond its scope and instead must be decided by the Parliament of India.
  • Protecting Homosexual Couples: The court directs that relationships between queer couples should not be ignored or discriminated against by the state.
  • Definition of Marriage: The court has also opined that it is incorrect to categorize marriage as a stagnant and unchanging institution.
    • The definition in the Special Marriage Act must not be a barrier for making a legal framework for same-sex marriages.
  • Interference: The court does not accept the centre’s stand that the issue of same sex marriage can only be dealt with the Parliament and not by the SC. It opines that the doctrine of separation of powers cannot come in the way of enforcing fundamental rights.
  • Adoption of Children: The court has however ruled that same-sex couples have the right to adopt children.

Same Sex Marriage in India vs Across the World:

Country  Law
Netherlands The Netherlands became the first country to give Same-sex couples the legal right of marriage and adoption.
Canada In 2005, Canada’s federal legislature legalized same-sex marriage. 
South Africa In 2006, South Africa became the first country in Africa and the first country in the Southern Hemisphere to legalize same-sex marriages.
Argentina In 2010, Argentina became the first country in Latin America to legalize same-sex marriages in the country.
New Zealand After received approval from the crown in 2013, New Zealand became the first country in the Asia-Pacific region to allow same-sex marriage.
England and Wales After approval from the queen, same-sex marriage in England was legalized through a Parliamentary measure.
Ireland Ireland legalized same-sex marriages in the country in 2015 through a popular referendum, making it the first country to legalize such marriages by popular vote.
United States After a decision by the Supreme Court in 2015, protecting the rights of people in marriages, the federal government approved same-sex marriages.
Taiwan Taiwan became the first Asian country to legalize same-sex marriages after the country’s Constitutional Court found a law recognizing marriage as between a man and a woman to be unconstitutional.
Estonia Estonia’s parliament approved same-sex marriage in June 2023, making it the first ex-Soviet and first Baltic country to do so.

 

same sex marriage in India

Conclusion

  • Homosexual couples face stigma and marginalization from their families, communities, and workplaces.
  • Legalizing same sex marriage in India  would not only have provided legal recognition and protection for LGBTQ+ couples but also could promote greater social acceptance and reduce discrimination against the marginalized communities.

 

Frequently Asked Questions

Same sex marriage in India refers to marriages between two individuals of the same gender.

The colonial-era Section 377 of the IPC criminalized homosexuality. This law was scrapped by the Supreme Court in 2018.

Currently, same sex marriage in India do not enjoy legal status in India due to rigid definition of gender in the laws. India’s laws define marriage as a union between a man and a woman.

In 2018, the Supreme Court’s constitutional bench, in Navtej Singh Johar v. Union of India judgment, decriminalized homosexuality.

The court has said that the issue of same sex marriage in India was beyond its scope and instead must be decided by the Parliament of India. However, it has ruled that same-sex couples have the right to adopt children.

The centre had cautioned that constitutional declaration made by the court on the petitions seeking legal validation for same sex marriage in India may have negative fallout. The centre also says that decisions on marriages can only be made by the Parliament.

The United States, England and Wales, New Zealand, Taiwan, Argentina, South Africa etc are some of the countries that have legalized same sex marriages.

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 Final Result – CIVIL SERVICES EXAMINATION, 2023.   Udaan-Prelims Wallah ( Static ) booklets 2024 released both in english and hindi : Download from Here!     Download UPSC Mains 2023 Question Papers PDF  Free Initiative links -1) Download Prahaar 3.0 for Mains Current Affairs PDF both in English and Hindi 2) Daily Main Answer Writing  , 3) Daily Current Affairs , Editorial Analysis and quiz ,  4) PDF Downloads  UPSC Prelims 2023 Trend Analysis cut-off and answer key

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AVAILABLE FOR DOWNLOAD SOON
UDAAN PRELIMS WALLAH
Comprehensive coverage with a concise format
Integration of PYQ within the booklet
Designed as per recent trends of Prelims questions
हिंदी में भी उपलब्ध
Quick Revise Now !
UDAAN PRELIMS WALLAH
Comprehensive coverage with a concise format
Integration of PYQ within the booklet
Designed as per recent trends of Prelims questions
हिंदी में भी उपलब्ध

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