PAVING THE WAY FOR MARRIAGE EQUALITY: SAME SEX MARRIAGE IN INDIA

 PAVING THE WAY FOR MARRIAGE EQUALITY: SAME SEX MARRIAGE IN INDIA 

ALL ISSUES IN RECOGNITION

“In the unification of two minds, orientation of sexuality is irrelevant” 

“Abhijit Naskar”

INTRODUCTION  

The custom of two men or two women being married. Most nation in the globe have laws, religious beliefs and customs that govern same sex marriage, however the reaction of society and the legal system have ranged from celebration to outright punishment. 

While same-sex marriage was not a primary objective of the LGBTQ which exactly stands for (Lesbian, Gay, Bisexual, Transgender, Queers) movement in the 1970s, it swiftly rose to the top of the movement’s agenda at the start of the new century in both the US and many other developed countries. The international movement includes the same-sex marriage movement. The Netherlands was the first country in the world to legalize same-sex unions in 2000. More than a dozen other nations in Western Europe, North America, and South America, as well as the country of South Africa, then followed suit. By the beginning of 2013, same-sex marriages performed in other states were recognized by four additional states, and nine states and the District of Columbia have approved same-sex unions.

STATES WHICH LEGALIZE SAME SEX MARRIAGE 

There are currently 34 states all over the world which legalize same sex marriage. Andorra, Argentina, Australia, Belgium, brazil, Austria, Canada, Colombia, Costa Rica, Cuba, Denmark, Finland, France, Germany, New Zealand, Norway, Portugal, South Africa, Spain, Switzerland, UK, US, Slovenia and many more are there. Netherland was the first country to legalize that in 2000 and currently Estonia become the latest to legalize same sex marriage on 20 Jun 2023 which will came into effect from 1 January 2024.  

SAME SEX MARRIAGE IN INDIA

Recently Supreme Court judgment decline of granting legal recognition to same sex marriage, drawing major criticism from all the LGBTQ communities. Over the past year, the topic has generated intense online arguments and front-page headlines in the most populous country in the world, a socially conservative nation. The LGBTQ community in India has long experienced discrimination from the government, religious authorities, and traditional parts of society, making them feel like second-class citizens.  

So after that the question before the LGBTQ community is that where same sex couples stand after this ruling of the Supreme Court?

SUPREME COURT VERDICT OVERVIEW 

On Tuesday, a five-judge Supreme Court bench lead by chief justice of India DY Chandrachud, justice Sanjay Kishan Kaul, S Ravindra Bhat, Hima kohli, PS Narashima rendered a 3:2 decision in response to petitions requesting the ability of LGBTQ people to choose their own families and get married. The Court rejected to make same-sex marriage lawful, leaving it up to the State and Parliament governments to determine whether or not non-heterosexual relationships can be recognized by law.

Why Supreme Court not allowed the same sex marriage?

• Non-heterosexual relationships are acknowledged by Justice Sanjay Kishan Kaul as an essential component of Indian culture and as a part of the “pluralistic social fabric.”
• It was unanimous among the five judges on the Bench that queerness was not a phenomenon exclusive to the wealthy and elite English-speaking metropolitan population. The Chief Justice reasoned that because cities provide a degree of anonymity and access to resources, expressions of queerness are more evident in urban areas. Being queer is not exclusive or urban. The court declared in unison that anyone can be queer from any background or place in the world.
• The idea that “homosexuality or gender queerness is not native to India” was explored by Chief Justice Chandrachud. He asserted that defining the term “Indian” is necessary to dispel this bias. In doing so, the Chief Justice noted that “anything, any event, or any practice is ‘Indian’ if it exists in India, occurs here, or is carried out by Indian citizens “It’s possible that anything that is Indian has always been there or that it only recently surfaced. Gender and sexual minorities are equally Indian to their cisgender and heterosexual fellow countrymen.
• The nation and its constitutional authorities, according to the Chief Justice, should not ignore the growing demand for equality from the LGBTQIA population. He pointed out that their demand to legalize same-sex marriage shouldn’t be written off as a cheap imitation of a notion from overseas.

There was demand from the petitioner’s side and all the LGBTQ communities that SMA special marriage act should be read down and the term men and women mention in section 4 should be neutral so that Queer community could get marriage recognition.

What Supreme Court said in this matter?

1. It is Complex Workability to read down SMA to include queer marriage 

According to the judgment written by chief justice DY Chandrachud section 21A of the SMA act directly linked with all the personal and succession laws and if we allowed that it make the issue very complex and very difficult to understand in nature According to CJI, even the petitioners themselves had to provide extensive statistics showing how feasible it would be to interpret SMA in a way that would include gay marriages.

2. Declaring SMA null and void would return India to the pre Independence era 

The chief justice DY Chandrachud mention in their judgment that SMA was enacted to give the opportunity to all to get marriage in different religion because at that time it was very important for the betterment of the society and today if this court for allowing the queer marriage struck down SMA act this attempt will take India to the pre Independence era and motive of this act will be destroyed.

3. Reading Words Into SMA Would Be Like Entering The Legislative Domain

Supreme Court said in this matter that reading the words into SMA and changing those words would mean exceeding the jurisdiction of Supreme Court and interfering in the matter of parliament as we all know that there is separation of powers in India. The CJI mention in His judgment “This court would in effect be redrafting the law in the garb of reading words into the provision. It is trite law that judicial legislation in impermissible’’ 

HISTORY OF THIS MOVEMENT

The Indian legal system has seen some recent changes that may have an impact on same-sex marriages in the country in the future. A clause of the Personal Data Protection Bill, which was introduced by the Indian government in 2020, acknowledges the right to privacy as a basic right. Given that it acknowledges people’s right to privacy, some legal experts think that this clause could be used to support the legalization of same-sex unions

Section 377 of the Indian Penal Code, which outlawed homosexual conduct, was enacted by the British in 1860, marking the beginning of LGBTQ+ rights in India. This statute persisted for more than a century, being applied to discriminate against and persecute LGBTQ+ people, even after India attained independence in 1947.

However, throughout the latter half of the 20th century, the fight for LGBTQ+ rights in India gained steam. The AIDS Bhedbhav Virodhi Andolan (ABVA), the first LGBTQ+ group, was established in Delhi in the 1990s to combat violence and prejudice against the LGBTQ+ community. A non-governmental organization called the Naz Foundation filed public interest litigation (PIL) in the Delhi High Court in 2001, arguing that Section 377 was unconstitutional. The LGBTQ+ community and their friends persisted in fighting for their rights in the face of strong resistance from conservative organizations and religious leaders, and in 2009 the Delhi High Court ruled that Section 377 was unconstitutional and decriminalized homosexuality. The Indian Supreme Court, however, reversed this ruling in 2013 and restored Section 377.

In 2018, the Supreme Court of India’s five-judge panel ruled that Section 377 was unconstitutional, reversing the earlier ruling and decriminalizing homosexuality once more. This was a big win for LGBTQ+ rights in India and a big step in the direction of eliminating prejudice and advancing equality. Nevertheless, the LGBTQ+ community in India continues to face formidable obstacles in spite of these legislative triumphs. In Indian society, there is still a lot of prejudice and violence towards LGBTQ+ people, and many of them experience marginalization and stigma from their family, communities, and places of employment. Particularly transgender people experience a variety of forms of discrimination, such as restricted access to housing, healthcare, work, and education.

Transgender Persons (Protection of Rights) Act: The Transgender Persons (Protection of Rights) Act was passed in 2019 with the intention of giving transgender people legal recognition and protection of their rights.

SAME SEX UNION ROOTS IN INDIAN TRADITION  

The world’s first textbook on sensual love, the Kamasutra, written in the fourth century, states that “two men friends who are well-wishers of each other and have complete trust in each other may mutually unite.” The fact that the young people were probably married to members of the same caste and class in a past life provides evidence in ancient writings of parents deciding to support their children’s marriages across caste and class boundaries. Likewise, these works elucidate the possibility of lifetime same-sex bonds.

Newspapers first reported on what is thought to be the first recorded same-sex marriage in modern India in 1988. Leela Namdeo and Urmila Srivastava, two policewomen, tied the knot in a modest ceremony in Madhya Pradesh.

Like cross-sex couples, a large number of same-sex couples in many parts of India were pushed to end their lives at the same time because “romantic love itself is seen to be opposed to social norms”.

 ” Hundreds of people have killed themselves, and the majority of them were women because they had been prohibited from getting married since at least the 1980s and this still stands to this day.”.

If at that time it was there in society and all these scripts have described about this kind of relations so why it cannot be accepted in today society 

SAME SEX MARRIGE AT WORLD LEVEL

Through national legislation, same-sex marriage is now permitted in 23 nations. Among them, laws allowing same-sex unions were only passed in Australia, Ireland, and Switzerland following nationwide elections.

Ten nations—Austria, Brazil, Colombia, Costa Rica, Ecuador, Mexico, Slovenia (followed by national law), South Africa, Taiwan, and the United States of America—have legalized same-sex marriage on a national level through court ruling 

Following court orders, the governments of Taiwan and South Africa passed laws allowing same-sex unions.

US UNITED STATES OF AMERICA: The supreme court of US issued a landmark ruling on 26 June 2015 which granted same sex marriage a legal recognition. Through a judgment given in the case of Obergefell v Hodges gay marriage was allowed nationwide including 14 more states that didn’t allowed this marriage previously According to Gallup surveys from 2017, 10.2% of LGBT Americans are married to a person of the same sex, which is an increase from the 7.9% who were married in the months before to the ruling by the Supreme Court. Because of this, as of 2017, the majority of same-sex cohabiting couples (61%) were married, up from 38% before to the verdict.

CUBA: Cubans passed a Family Code on September 25, 2022, through a national referendum that included measures allowing same-sex marriage.

SLOVENIA: The Slovenian parliament was given six months to enact legislation in response to the Constitutional Court’s July 8, 2022, ruling that the country’s ban on same-sex weddings was unconstitutional. This legislation was passed on 4 October finally the ruling swiftly followed the court’s decision. 

COSTA RICA: In November 2018, the Supreme Court of Costa Rica rendered a decision upholding the landmark advisory opinion from the Inter American Court of Human Rights from January 2018, which stated that marriage equality aligned with Costa Rica’s commitments under the American Convention on Human Rights. The National Assembly was given until May 26, 2020, by the Supreme Court, to pass such legislation. However, the deadline was missed, and marital equality took effect on that day.

AUSTRIA: On December 4, 2017, the Austrian Constitutional Court declared that it was discriminatory to deny marriage equality, thereby legalizing same sex unions. The first day of marriage equality was January 1, 2019

                       CONCLUSION  

According to the report that was released by the Kinsey scale which shows that India is home to the world largest LGBTQ community and this report estimated number around 10% of the total population or may be more  this exactly shows why we need to legalize same sex marriage. There are many countries with very low population legalizing this marriage so. Why India cannot do the same when we all know that India is going to be the third largest economy in coming years. India has always proved that how India has supported human rights and equality worldwide but at this we need more to do.

This was a historic missed opportunity for the Supreme Court to herald in a new era in what has been a long fight for equal rights of LGBTQ peoples Aakar Patel, chair of Amnesty International India

Author: Krishna, a Student at Amity Law College Noida