31 Dec Special Marriage Act, 1954 (Marriage rights of same-sex couples)
Special Marriage Act, 1954 (Marriage rights of same-sex couples)
This article discusses “Daily current affairs for UPSC” about “issues Regarding Transgender and Same-sex Marriage, Special Marriage Act, 1954.” news about Indian Polity and Governance-Constitution. In GS-1 and the following content has relevance for UPSC.
For prelims: About LGBTQIA+ community, Special Marriage Act, 1954
For mains: GS-1, GS-2, Special Marriage Act, 1954, LGBTQIA+ community, Indian society, Social empowerment
Why in news:
It seems difficult for the state to defend the exclusion of marital rights in light of the judiciary’s compelling arguments in favor of equality in “The Navtej Singh Johar case.”
On a petition by two gay couples seeking to recognize same-sex marriage under the Special Marriage Act of 1954, the Supreme Court gave notice to the Center Government.
Special Marriage Act
Several issues were raised in various petitions:
- On Violation of constitutional rights:
Rights were breached, according to a Public Interest Litigation (PIL) brought by two LGBTQIA+ couples who claimed that the state’s reluctance to recognize their marriages was an infringement on their constitutional rights.
First Petition: It was submitted by a couple that has been dating for over ten years.
Second Petition: It was submitted by a married couple who have been together for 17 years and are parents to their children. They cannot, however, have a legal relationship with their children because they are not married.
Additional petitions: Some of the cases under India’s 1954 Special Marriage Act (SMA) seeking recognition of same-sex marriages are still pending in Delhi and Kerala’s state-level high courts.
- Decriminalization: The acceptance of same-sex unions came after other precedent-setting decisions, such as the 2018 decriminalization of homosexuality and the 2017 declaration of the right to privacy.
In a court case in Delhi High Court in 2021, the central government opposed same-sex unions, arguing that in India, marriage may only be recognized when it is between a biological man and a biological woman who is able to bear children.
Government Position: According to the Centre government, “societal morality” considerations are pertinent while evaluating the legality of the law, and it is up to the legislature to uphold such societal morality and popular acceptance in accordance with Indian ethos.
Related judgments:
- Naz Foundation v. Delhi’s NCT government (2009):
Section 377 of the IPC was declared unlawful in one of the first legal rulings because it discriminated against the country’s LGBTQIA+ people and
infringed their right to personal privacy.
According to the Delhi High Court’s landmark decision, Section 377 violates Articles 14, 15, and 21. The court found that Section 377 does not distinguish between activities that are done for public or private purposes, or between acts that are done with or without consent.
When Section 377 also applied to juveniles, the ruling was limited to adults. The statute had allowed for the harassment of LGBTQIA+ individuals under Section 377.
- Case of Suresh Koushal (2013):
The Delhi High Court’s 2009 ruling decriminalizing gay conduct and reinstating homosexuality as a crime was overruled by the Supreme Court.
Less than 200 people have been charged under Section 377 in 150 years, according to SC’s argument.
Because of this, the “plight of sexual minorities” could not be cited as justification for the validity of a statute.
Additionally, the SC decided that the legislature should decide whether it would be beneficial to repeal section 377 of the IPC.
- Union of India v. National Legal Services Authority (2014):
The court upheld the fundamental rights that are granted to transgender people and referred to them as the “Third Gender.”
Additionally, they were given preference while applying for jobs and educational institutions.
- The Supreme Court of India ruled in Justice K.S. Puttaswamy v. Union of India (2017) that the fundamental right to privacy is indivisible from life and liberty and is, thus, protected by Article 21 of the Indian constitution.
The Supreme Court decided that the right to privacy included the freedom of the body.
- Navtej Singh Johar versus the Indian Union (2018)
Homosexuality is no longer a crime.
Dismissed the SC’s stance in the Suresh Kumar Koushal case (2013) that the LGBTQIA+ community is a tiny minority and that decriminalizing homosexual conduct is not necessary because of this.
About Special Marriage Act (SMA)1954
- In India, marriages can be registered under relevant personal laws, such as the Muslim Marriage Act of 1954, the Hindu Marriage Act of 1955, or the Special Marriage Act of 1954.
- The judiciary has a responsibility to make sure that both the husband and wife’s rights are upheld.
- Unaffected by the religion or belief practiced by either partner, the Special Marriage Act, 1954 is an Act of the Parliament of India that provides for civil marriage for citizens of India and all Indian nationals abroad.
- The Special Marriage Act, rather than personal laws, governs a marriage when it is solemnized in accordance with this law.
Marriage laws in India at present:
- The Indian Constitution does not expressly recognize the right to marriage as a basic or constitutional right.
- However, same-sex unions are not permitted in India either.
- Although marriage is governed by a number of statutory laws, its recognition as a basic right only came about as a result of Supreme Court of India rulings. According to Article 141 of the Constitution, this pronouncement of law is obligatory in all courts in India.
Issues faced by LGBTQIA+ People:
- Marginalization: People who identify as LGBTQIA+ may face a variety of types of marginalization that are harmful to their mental health, including homophobia and transphobia as well as sexism, poverty, discrimination, and other problems.
- LGBTQIA+ persons frequently lack access to fundamental services including education, justice, and medical care as a result of such marginalization.
- Family Responses and the Effect on LGBTQIA+ Children Numerous LGBTQIA+ children were prevented from discussing their thoughts with their parents due to rejection and severe negative reactions.
- Lack of family support can be a serious blow to LGBTQIA+ people’s mental and physical health in a country where inflexible social and cultural norms govern the terms and conditions of education, employment, and marriage.
- Terminology issues: People who identify as LGBTQIA+ are stigmatized and made fun of, which prevents them from achieving their aim of receiving acknowledgment and makes them feel isolated from society.
- Socially Unrecognized: Gender bias is frequently present in school uniforms, clothing code and look, and entry points for travel, such as ticket purchase forms, security checks, and restrooms.
LGBTQIA+ people frequently have to discuss their gender identity in public while riding public transportation.
Sex is always either male, female, or transgender in biology. Gender, though, can fluctuate as a social category.
Legislation:
- Many have questioned if steps should be taken to legalize same-sex marriage in India after the Supreme Court of that country decriminalized homosexuality.
- Initially, the SMA was passed to legalize interfaith marriage. LGBTQIA+ couples are now asking that the SMA should recognize their marriages.
- Even if there is more knowledge of the LGBTQIA+ population in India, there is still stigma and opposition to full acceptance. 33 nations have accepted same-sex marriage and civil unions as of this writing.
- Indian law does not recognize civil unions and does not recognize same-sex weddings. Gay and lesbian couples are also prohibited from using an Indian surrogate mother to help them conceive children.
- Only a single parent who identifies as LGBTQIA+ may submit an adoption application to the Central Adoption Review Authority.
How is same-sex marriage legally recognized?
- Either of the following methods can be used to make same-sex unions legal:
- Interpreting the law as it currently stands to make same-gender partnership unions legitimate.
- Recognizing the LGBTQIA+ culture as a distinct group whose customs support relationships between people of the same gender.
- The Special Marriage Act of 1954 may be changed to permit weddings of the same gender.
Way ahead:
- Anti-discrimination Law: The LGTBQIA+ community requires an anti-discrimination law that allows them to create fulfilling lives and relationships regardless of gender identity or sexual orientation and places the burden of change on the state, society, and individuals as well.
- Increasing awareness of the LGBTQIA+ community and empowering young people in it calls for an open discussion space where they can feel accepted and free to express their emotions.
- LGBTQIA+ people now have places to socialize, share, and work together thanks to platforms like Gaysi and Gaylaxy.
- The Pride Parade and Month Initiative is another positive step in this approach.
- Elimination of Distinctness: Since same-sex marriage would end the official “otherness” status of LGBTQIA+ persons, it would aid in the reduction of several types of prejudice.
- The totality of Rights: It is beyond question that the basic right to marry a person of one’s choosing must be granted to same-sex couples planning to wed once members of the LGBTQIA+ community “are entitled to the full spectrum of constitutional rights.”
UPSC Civil Services Examination, Previous Year Questions (PMQs)
Q. Examine the scope of Fundamental Rights in light of the latest judgment of the Supreme Court on the Right to Privacy. (2017)
- Blogs.egu.eu
- The Hindu (Same rights: On Government’s response to appeals to allow same-sex marriage)
- The Hindu (Supreme Court seeks govt response on including same-sex marriage under Special Marriage Act)
- The Hindu (A strong case exists for marriage equality)
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