Introduction
Same sex marriage refers to marriage between two individuals of same gender. In most of the countries same sex marriage is not allowed , in Asia only Taiwan consider same sex marriage and it allowed same sex marriage. In 2019, only 32 countries worldwide recognises same sex marriage in India this issue was in news from very long time many petitions have been filed in the courts to recognise same sex marriage & there is a continuous long debate in supreme court on this topic, same sex marriage is very important for the LGBTQ community because it will give them recognition and protection of their relationship, same sex marriage will definitely help them to reduce discrimination and promote social acceptance among the society. Before 2017 same sex marriage was not decriminalised in India and it was considered as an offence according to section 377 of Indian Penal Code, it states that homosexuality is an offence and it should be criminalised but in 2018 supreme court struck down sec 377 of IPC and decriminalised it[1], it was a big win for LGBTQ+ community ,from my point of view it was a great decision because if you cannot give certain rights to the LGBTQ community then you don’t have any rights to criminalise homosexuality which is natural in every aspect. Same sex marriage will impact almost 160 laws of India that’s why the 5 Judge bench which is hearing the case suggested that there should be a committee framed by the central government on central level that will precisely analyse the issue and suggest some solutions for it.[2]
History
History of LGBTQ+ rights dates back to 1860 when Britishers made the provision of section 377 in Indian penal code that criminalised homosexual acts in India. Back in 19th century homosexuality in India was viewed very unethical and most of the Indians were against it, one reason for that could be low literacy rate. When India got its independence in1947 even then the law was not modified and this led to many discriminations amongst the LGBTQ+ community. The first organisation which was formed to fight against the discrimination of LGBTQ community was AIDS Bhedbhav Virodhi Andolan (ABVA) it was founded in Delhi to fight against the discrimination against LGBTQ+ community. The first public interest litigation was filed in Delhi high court in 2001 challenging the constitutionality of section 377 IPC. LGBTQ+ community continued their fight and in 2009 Delhi HC declared section 377 of IPC unconstitutional and decriminalise Homosexuality however it was overturned by the SC of India in 2013, but finally in 2018 Five judge bench of Supreme Court of India declared sec 377 of IPC unconstitutional. This was a major victory for the LGBTQ+ community but even after this LGBTQ+ community still faces significant challenges which needs to be noticed.
Analysis of Judgement on Same sex Marriage by the SC of India
The supreme court on Tuesday 17th of October made a historical judgement by declining the legalisation of same sex marriage in India. The judgement was given by Five judge bench which was led by Chief Justice of India DY Chandrachud, Justice SK Kaul, Justice SR Bhatt, Justice Hima Kohli and Justice PS Narsimha. The hearing of same sex marriage was spanned for almost 10 days in April-May and after all the hearing the order was reserved by the Supreme Court on 11th may and on Tuesday the judgement was passed. When we talk about the background of the case then we should understand the side of petitioners as well as the government. The petitioners have given much stress on the equality of the LGBTQ+ community and tried to acknowledge such a union which will help the LGBTQ+ community to lead a dignified life. They also want’s that the same sex marriage should be accord legal recognition under the Special marriage act.
The government side argued that the topic of same sex marriage should be leaved on the Parliament and supreme court should not interfere in this because if we will legalise the same sex marriage then it will affect almost 160 laws and it will impact the marriage equality. The Narendra Modi govt opposed same sex marriage during hearing and said that legislative policy of India only validates a union between” a biological man and a biological woman”.[3] The govt also emphasised the need of a committee on a central level to examine various steps that would be necessary to address before legalising same sex marriage. The govt also submitted some paper work for this and said that they will set up a panel headed by cabinet secretary to examine administrative steps that will be needed to solve this issue of same sex couple. The supreme court also asked from the states that what are their views in this case, the centre only received seven responses among those 7 responses 3 states (Rajasthan, Assam & Andhra Pradesh) opposed the plea & 4 states (Sikkim, Maharashtra, Uttar Pradesh & Manipur) sought more time to express their views. In the Judgement which was given on Tuesday 17th October there were 4[4]judgements, one each by CJI DY Chandrachud, Justice Kaul, Justice Bhatt and Justice Narsimha & Justice Kohli agreed with Justice Bhatt & Justice Narsimha. So Justice DY Chandrachud & Justice Kaul have same views and the wanted the legalisation of same sex marriage but the other 3 Judges have their own views and they wanted that legalisation of same sex marriage should not be done and because of this the majority judgement of other 3 judges prevailed and the judgement was passed with 2:3. The CJI and Kaul didn’t accepted the centres stand that only parliament can deal with the issue of same sex marriage and the also said that it is not good to categorise marriage as a stagnant and unchanging institution, the society is changing and we also need to change we have to be at par with the society, many laws in India have been amended because it was not at par with the society like triple talaq. CJI also says that special marriage act cannot be struck down and it should be left on the parliament to decide. They also emphasised that govt should take some steps to make people aware about the rights of LGBTQ+ community and mostly they supported the legalisation of same sex marriage. The other 3 judges emphasised that this issue should be left on Parliament to decide whether to legalise same sex marriage or not. They also said that 160 laws will be impacted with the legalisation of same sex marriage, they again said that there should be a committee on central level to examine the concerns of same sex marriage.
Conclusion & Suggestion
After analysing the whole Judgement, it can be said that today legalising same sex marriage will not be beneficial, before legalising the same sex marriage the Supreme Court should think about the amendment of that 160 laws which will be affected by the legalising of Same sex marriage. In my opinion Supreme court should leave this topic to be decided by the Parliament. A central level Committee should be formed to discuss the broad aspect of legalising Same sex marriage, all the drawbacks and advantages should be properly analysed before taking any decision. Centre can also ask the states to submit official papers regarding the discriminations towards LGBTQ+ community and they should also advise the committee about some sort of change that they need to change in pursuit of same sex marriage. The laws that would be affected by this change should be properly analysed by the members of that committee and after analysing thy should suggest changes that could be made in the preexisting laws. If we talk about the legalisation of same sex marriage then even after the legalisation of the same sex marriage the societal discrimination will still prevail in most of the parts of Inda so the government should focus on launching some campaigns to aware people about the discrimination that is being faced by the LGBTQ+ Community. At last it can be said that the issue of same sex marriage in India is very complex and involves various perspective like Cultural, legal & religious. Cultural & religious perspective are the main aspect that is there in the Indian society and this is the main reason why same sex marriage is being opposed so In my view even after legalising the same sex marriage the societal discrimination will still prevail so the Indian government should do something that would change the views of Indian Society.
Notes:
[1]Ishank, “Analysis: Same-Sex Marriage in India”, Legal Service India, available at < https://www.legalserviceindia.com/legal/article-8025-analysis-same-sex-marriage-in-india.html> last accessed on October 24 2024.
[2] Dopamineeffable, “Same sex marriage in india: A complete overview” The times of India, 6th may 2023, available at < Same Sex Marriages in India: A complete overview (indiatimes.com)> last assessed on October 22 2024.
[3] Astha Jain and Dhanashree Kodape, “Evolution of Recognition: Navigating LGBTQ+ Marriage Rights in India- A Holistic Perspective and Way Forward”, Manupatra, April 16 2024, available at < https://articles.manupatra.com/article-details/Evolution-of-Recognition-Navigating-LGBTQ_Plus_-Marriage-Rights-in-India-A-Holistic-Perspective-and-Way-Forward> last accessed on October 25 2024.
[4] Arpan chaturvedui & YP rajesh “India’s top court declines to legalise same sex marriage” 18 october, available at < India’s top court declines to legalise same-sex marriage | Reuters> last assessed on October 23 2024.
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