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SC transfers to itself all pleas related to same-sex marriage

GS Paper 2

Syllabus: Mechanisms, Laws, Institutions and Bodies constituted for the Protection and Betterment of these Vulnerable Sections

 

Source: TH

  

Direction: The article highlights the background of which the issue of same-sex marriages reached before the courts in India and also highlights countries around the world which recognise same-sex marriages.

  

Context: The SC transferred to itself (for an authoritative ruling) petitions pending in various HCs seeking legal recognition of same-sex marriage under the Special Marriage Act (SMA) 1954 and making the law gender-neutral.

The Special Marriage Act, 1954:
  • It provides for civil marriage (or “registered marriage”) for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party.
  • Marriages solemnised under the Act are not governed by personal laws.

 

Background:

  • Batches of petitions, filed after the Navtej Johar case (which decriminalised homosexuality by reading down section 377 of the IPC), were pending before the Delhi, Kerala and Gujarat HCs.
  • These petitions argue that non-recognition of same-sex marriage amounted to discrimination impacting the dignity and self-fulfilment of LGBTQ+ couples.
  • They also challenge the mandatory requirement to issue public notice and objection to marriage contemplated under the SMA and the Foreign Marriage Act, exposing same-sex couples to the risks of ostracism, persecution and violence.
  • 32 countries around the world recognise gay marriage.

 

What happens in other countries?

  • US: In 2015, the US SC recognised gay marriage, as limiting marriage solely to heterosexual couples violated the 14th Amendment guaranteeing equal protection under the law.
    • The decision led to a nationwide legalisation of same-sex marriage.
  • Australia, Ireland, Switzerland: Following a referendum, Australia’s Parliament passed a law recognising the same-sex-marriage.
    • In Ireland and Switzerland too, a popular vote by the majority led to formal recognition of LGBTQ marriages.
  • South Africa became the first African country to legalise same-sex marriages in 2006, as the highest court found the ‘Heterosexual-Only Marriage’ policy to be violative of the equal rights enshrined in the constitution.
  • Taiwan became the first Asian country to recognise same-sex marriage.
  • Argentina became the first Latin American country to allow same-sex marriages nationwide.
  • Canada: Same-sex couples in Canada have enjoyed the legal benefits of marriage since 1999. In 2005, the Canadian Parliament passed nationwide legislation to this effect.

 

 

Insta Links:

Legalising Same-Sex Marriage

  

Mains Links:

Q. Examine the scope of Fundamental Rights in light of the latest judgement of the Supreme Court on the Right to Privacy. (UPSC 2017)

 

Prelims Links: (UPSC 2019)

Which Article of the Constitution of India safeguards one’s right to marry the person of one’s choice?

(a) Article 19

(b) Article 21

(c) Article 25

(d) Article 29

 

Ans: b