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What is India’s stand on same-sex marriage?

GS Paper 2

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


Source: TH

Context: A Bench led by CJI referred petitions to legally recognise same-sex marriages to a Constitution Bench of five judges of the SC.


What is the case?

  • Even if LGBTQIA+ couples may live together, they do not enjoy the rights married couples do.
  • For example,
    • They cannot adopt children or have a child by surrogacy;
    • They do not have automatic rights to inheritance, maintenance and tax benefits after a partner passes away,
    • They cannot avail of benefits like pension or compensation.
  • The Court has been hearing multiple petitioners’ requests for legal recognition of same-sex marriages under the Special Marriage Act (SMA) 1954 and making the law gender-neutral.


How has the SC recently viewed LGBTQIA+ rights?

  • In Navtej Singh Johar (2018) case [decriminalised homosexuality by reading down Section 377 (IPC)], the SC held that the community is entitled to the benefit of equal citizenship and to the equal protection of the law.
    • Article 21 of the Indian constitution (right to life and liberty) guarantees the choice of whom to partner with, the ability to find fulfilment in sexual intimacies, etc.
  • In K.S. Puttaswamy’s (2017) case, SC ruled that the fundamental right to privacy (including bodily autonomy, and sexual orientation) is intrinsic to life and liberty and thus integral to Article 21.
  • After these judgements, there was hope that same-sex marriages would be legalised, but that has not been the case, prompting many couples to move to court.


What is the Centre’s stand?

  • Opposed same-sex marriage and said judicial interference will cause complete havoc with the delicate balance of personal laws.
  • This definition of marriage is socially, culturally and legally ingrained into the very idea of the heterogeneous institution (a union between two persons of the opposite sex) of marriage.
  • The decriminalisation of Section 377 IPC does not give rise to a claim to seek recognition for same-sex marriage.
  • Even if same-sex marriage is claimed under Article 21, the right can be curtailed by the competent legislature on permissible constitutional grounds including legitimate state interest.


Way ahead:

  • It is clear that the two organs of the state are not in agreement on same-sex marriages.
  • Even if the Court rules in its favour, the march towards same-sex marriage in a diverse country with well-entrenched traditions will not be easy.
  • Therefore, awareness of sex, gender and constitutional rights from the school level to change things on the ground is the need of the hour.

Insta Links:

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