Why in news? A five-judge Constitution Bench of the Supreme Court, declined to legalise same-sex marriage, leaving it to Parliament to legislate on the subject.

Highlights:

• The Bench ruled that there is no fundamental right to marry, and the court cannot intervene legalizing same sex marriage

What is the major highlights of supreme court judgment ?

• Bench unanimously declined to recognise same-sex marriages
• Right to marriage is not a fundamental right.
• Agreed that the Special Marriage Act of 1954 was not unconstitutional for excluding same-sex marriages.
• Majority disfavours the position that queer couples have a right to adopt children, but agrees with the minority that there is no bar on transpersons entering into heterosexual marriages.
• A committee, with the Cabinet Secretary as its chairperson, should be established to define the rights that would be granted to civil unions involving queer couples.

History of LGBTQ+ rights in India

• Introduction of Section 377: In 1860, the British colonial government introduced Section 377 of the Indian Penal Code, which criminalized sexual activities “against the order of nature” and effectively criminalized homosexuality.
• Founding of LGBTQ+ organizations: In the 1990s, the first LGBTQ+ organization, the AIDS Bhedbhav Virodhi Andolan (ABVA), was founded in Delhi to fight against discrimination and violence faced by the LGBTQ+ community.
• Naz Foundation’s PIL: In 2001, the Naz Foundation, a non-governmental organization, filed a public interest litigation (PIL) in the Delhi High Court challenging the constitutionality of Section 377.
• Delhi High Court’s 2009 judgment: In 2009, the Delhi High Court declared Section 377 unconstitutional and decriminalized homosexuality.
• Supreme Court’s 2013 decision: In 2013, the Supreme Court of India overturned the Delhi High Court’s judgment and reinstated Section 377, criminalizing homosexuality once again.
• Navtej Singh Johar v. Union of India : In 2018, Supreme Court of India declared Section 377 unconstitutional, marked a historic shift towards recognizing the fundamental rights and freedoms of LGBTQ+ individuals in India..
• Transgender Persons (Protection of Rights) Act: The act aimed to protect the rights of transgender individuals and provide them with legal recognition.

What are the arguments in favour of legalizing same sex marriage?

• Equality and Civil Rights: Legalizing same-sex marriage would provide equal rights and protections to all individuals under article 14 , regardless of their sexual orientation, and would help in creating a more equitable society.
• Reducing Discrimination: It will have positive impact on the mental health and well-being of LGBTQ+ individuals, who currently face high rates of discrimination, harassment, and violence. It sends a message that society values and respects their relationships with more inclusivity under article 15.
• Right to privacy: The right to privacy includes the freedom to make decisions about one’s body and personal relationships. Enabling same-sex marriage through legalization would guarantee the privacy rights of homosexual couples.
• Family Protections: It would help in creating a more accepting and tolerant society and would reduce the stigma and discrimination that the LGBTQ+ community currently faces.
• Strengthening Social Fabric: It will led to a greater understanding and acceptance of same-sex relationships and sexual orientations, challenging the traditional societal norms and beliefs that have stigmatized LGBTQ+ individuals. Same sex marriage helps to bridge societal divides.
• Legal Clarity: The decriminalization of homosexuality has also creates an opportunities for the LGBTQ+ community to advocate for their rights and demand legal recognition and protections. Provides clarity and consistency in legal matters, such as divorce, property rights, and child custody,
• Global acceptance : Countries that legalize same-sex marriage often serve as a global example for human rights and equality. They can influence other nations to adopt more inclusive policies and protections for LGBTQ+ individuals.
• Universal Declaration of Human Rights : India was an original signatory to the (UDHR), the founding document of all human rights in the world. Article 16 of the UDHR, 1948 provides that, “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family” Under the UDHR, the right to marry is a human right.

What are the arguments against legalizing same sex marriage ?

• Undermine traditional family values: It is viewed as a social contract between two families and is seen as a way to continue family lineage and traditions. Traditional Indian society is largely conservative, and same-sex relationships are not widely accepted.
• Legal perspective: The Indian Constitution does not explicitly mention sexual orientation, and same-sex marriage is still not legal. LGBTQ+ individuals do not have the same legal rights as heterosexual couples, including the right to marriage, adoption, and inheritance.
• Children’s Welfare: It is argued that children need to have a well-rounded( mother and father) upbringing and that same-sex couples cannot provide this. They claim that children raised by same-sex couples are more likely to have emotional and behavioural problems, and that legalizing same-sex marriage would promote the adoption of children by same-sex couples, and would be detrimental to the child’s well-being
• Religious perspective: Many of the major religions in India, including Hinduism, Islam, and Christianity, consider homosexuality to be a sin. These religions view marriage as a union between a man and a woman, and same-sex marriage is not recognized.
• Procreation: Critics argue that marriage should primarily serve the purpose of procreation and child-rearing. Since same-sex couples cannot naturally produce offspring together, they contend that these unions should not be recognized as marriages.

Way forward

• There were recent positive developments, such as the inclusion of gender identity in the country’s census and the decision by several state governments to provide transgender individuals with job quotas and reservation benefits.
• The Indian government is also considering to legalizing same-sex marriage in the future, particularly in light of the growing global trend towards marriage equality. The recent legalization in Nepal and Taiwan could put pressure on India to follow suit.
• It is important for LGBTQ+ activists and supporters to continue advocating for their rights and pushing for change, while also working to raise awareness and promote greater acceptance and understanding in society as a whole.