QUESTION : Even after the decision of the Supreme Court, the LGBTQ community is a victim of neglect in society. Do you agree that the recognition of same-sex marriage will help improve this situation? Give an argument in favour of your answer?
IN INDIA, LOOKING BEYOND THE BINARY TO A SPECTRUM
WHAT ?
Issue of Same-Sex Marriage in India
WHY IN NEWS ?
Recently the cases surrounding the question of same-sex marriages came up before the High Court of Delhi, the Union Government have the matter adjourned on the ground that it was not urgent.
BACKGROUND :
• The last two decades have witnessed tremendous progress in establishing civil rights for the LGBTQIA+ community.
• The Union Government argued that the matter was not important in the context of the second wave of COVID-19 cases.
MORE ABOUT THIS NEWS :
• It overlooked the basic notion that the plight of persons in same-sex and queer relationships looking after each other (without the legal protection of marital relationships) was exacerbated by the pandemic.
• Any further delay in doing so would fall foul of our constitutional guarantees, judgments rendered by various High Courts and evolving international jurisprudence.
INTERNATIONAL JURISPRUDENCE :
• In 2005, the Constitutional Court of South Africa in the case of:
o Minister of Home Affairs and Another vs Fourie and Another.
o Lesbian and Gay Equality Project and Eighteen Others vs Minister of Home Affairs and Others [2005] ZACC 19.
Unanimously held that the common law definition of marriage i.e. “a union of one man with one woman” was inconsistent with the Constitution of the Republic of South Africa, 1996.
o Consequently, the Parliament of South Africa was given 12 months to amend the Marriage Act 25 of 1961;
Failing which the Marriage Act would stand amended, by virtue of the decision of the Constitutional Court, to include the words “or spouse” after the words “or husband”.
o As a result of the verdict, the Civil Union Act, 2006 was enacted, enabling the voluntary union of two persons above 18 years of age, by way of marriage.
• In 2007 in Australia, the reforms to civil rights of queer community were prompted by the Honourable Michael Kirby (then judge of the High Court of Australia).
o He wrote to the Attorney-General of Australia asking for the judicial pension scheme to be extended to his gay partner of 38 years (at that time).
o After initial opposition from the Federal Government, the Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 came to be enacted.
o It provided equal entitlements for same-sex couples in matters of, inter alia, social security, employment and taxation.
• Similarly, in England and Wales, the Marriage (Same Sex Couples) Act 2013 enabled same-sex couples to marry in civil ceremonies or with religious rites.
• More recently, in 2015, the Supreme Court of the United States decided that the fundamental right to marry is guaranteed to same-sex couples.
• Across the world, the recognition of the unequal laws discriminating against the LGBTQIA+ community has acted as a trigger to reform and modernise legal architecture to become more inclusive and equal.
COURTS AND CIVIL RIGHTS :
• In India, marriages solemnised under personal laws such as:
o The Hindu Marriage Act, 1955,
o Indian Christian Marriage Act, 1872,
o Muslim Personal Law (Shariat) Application Act, 1937 and so on.
• At present, though same-sex and queer marriages are not clearly recognised in India.
o In the case of Arun Kumar and Sreeja vs The Inspector General of Registration and Ors.
o The Madurai Bench of the High Court of Madras employed a beneficial and purposive interpretation holding that the term ‘bride’ under the Hindu Marriage Act, 1955 includes transwomen and intersex persons identifying as women.
o Therefore, a marriage solemnised between a male and a transwoman, both professing the Hindu religion, is deemed to be a valid marriage under the Act.
o The import of this judgment cannot be overstated as it expands the scope of a term used in the Hindu Marriage Act, 1955 in a progressive manner and sets the stage for re-imagining marriage rights of the LGBTQIA+ community.
• The judgment of the Madras High Court builds on the tenets laid down by the Supreme Court of India in Shafin Jahan vs Asokan K.M. and Others AIR 2018 SC 1933 (Hadiya case).
o Wherein the right to choose and marry a partner was considered to be a constitutionally guaranteed freedom.
o The Supreme Court held that the “intimacies of marriage lie within a core zone of privacy, which is inviolable” and that “society has no role to play in determining our choice of partners”.
• The only logical interpretation from reading these cases together, it is apparent that any legal or statutory bar to same-sex and queer marriages must necessarily be held to be unconstitutional and specifically violative of Articles 14, 15 and 21 of the Constitution of India.
o Article 14: Equality Before Law.
o Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
o Article 21: Protection of life and personal liberty.
• No longer can the position of the Union Government that marriage is a bond between “a biological man and a biological woman” be tenable.
EXPANDING THE SCOPE OF MARRIAGE:
• The domain of marriages, including religious marriages, cannot be immune to reform and review.
• Self-respect marriages were legalised in Tamil Nadu (and subsequently, in Puducherry) through amendments to the Hindu Marriage Act, 1955.
o Self-respect marriages, commonly conducted among those who are part of the Dravidian Movement, have done away with priests and religious symbols such as fire or saptapadi.
o Instead, solemnization of self-respect marriages only requires an exchange of rings or garlands or tying of the mangalsutra.
o Such reform of the Hindu Marriage Act, 1955 to bring self-respect marriages under its very umbrella, is seen as a strong move towards breaking caste-based practices within the institution of marriage.
WHAT IS HOMOSEXUALITY ?
Homosexuality is generally defined as the attraction between people of the same sex by nature or love, but it is a narrow definition of homosexuality.
There are several categories of flour mainly in the gay category which are described as follows –
• Lesbian – A woman’s attraction to another woman
• Gay – One man’s attraction towards another man
• Bisexual – Attraction towards both (same and opposite) sexes
• Transsexual – Changes in the opposite sex of the natural sex
• Queer – They are not confident about their sexual attraction.
These categories are collectively combined with LGBTQ. They are said to represent the gay category.
ARGUMENTS IN FAVOUR OF SAME-SEX MARRIAGE :
• Articles 15, and 16 of the Indian Constitution prohibit discrimination based on gender, but these rights are often violated in society.
• Person with Same-sex marriage is denied from property, insurance, and family rights.
• Under Article 19 1 (a), the person has the right to freedom of sexual expression. But in the case of gay marriage, this right should not be used.
• Many times, physical or mental violence is also used by conservative elements of the society on same-sex couples.
• Thus same-sex marriage hinders the use of fundamental rights, social rights, family rights of the person. Therefore, same-sex marriage should be recognized under the Special Marriage Act, so that they can get their rights.
NEED TO DECRIMINALISE THE HOMOSEXUALITY :
• The third gender is one of the most oppressed and ignored communities and is often forced to resort to beggary in India.
• Following are the major problems faced by them:
o Mental Health: The isolation faced by LGBTQ+ is very high. They are not accepted in regular society.
o Substance Abuse: The prevalence of Drugs is high due to mental problems, exploitation and beggary.
o Sexually Transmitted Diseases (STDs): Multiple studies have shown that LGBTQ+ have higher AIDS and other STDs incidences due to lack of awareness and reach of the support mechanism of government.
o Harassment and Violence: As society denies them various rights and doesn’t allow them to integrate in the mainstream, there are conflicts.
WAY FORWARD :
The LGTBQ community needs an anti-discrimination law that empowers them to build productive lives and relationships irrespective of gender identity or sexual orientation and place the onus to change on state and society and not the individual.
Once members of the LGBTQ community “are entitled to the full range of constitutional rights”, it is beyond doubt that the fundamental right to marry a person of one’s own choice has to be conferred on same sex couples intending to marry. More than two dozen countries have legalized same-sex marriage.
Countries around the world have legalized same-sex marriages. The world is heading towards progressive LGBTQ rights. Therefore, it is time to join the many democracies which recognize the right of a citizen to marry anyone she chooses.
Apart from legal, they also need a socio-political backup for their real empowerment.
As humans, it is our prime duty to be tolerant, rational and aware citizens and help the LGBTQ+ to climb up in the social hierarchy
CONCLUSION :
Understanding the needs of the LGBTQIA+ community today, the law must now expand the institution of marriage to include all gender and sexual identities. At least 29 countries in the world have legalised same-sex marriage. It is time that India thinks beyond the binary and reviews its existing legal architecture in order to legalise marriages irrespective of gender identity and sexual orientation.
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