Context: Recently, the Central Government opposed same-sex marriage in Delhi High Court stating that a marriage in India can be recognised only if it is between a “biological man” and a “biological woman” capable of producing children.

Background

• In 2020, petitions were filed seeking recognition of same sex marriages under the Hindu Marriage Act (HMA), 1955 and the Special Marriage Act (SMA), 1954.

Arguments given by the Central Government

• The Centre told the Delhi High Court that the institution of marriage has a sanctity in India which depends upon age-old customs, rituals, practices, cultural ethos and societal values.
• Living together as partners or in a relationship with a same-sex individual is not comparable with the Indian family unit concept of a husband, wife and children.
• Under the Section 377 of the IPC covering homosexuality, the Supreme Court had only decriminalised a particular human behaviour but neither intended to, nor did in fact, legitimised same-sex marriages.
• The considerations of societal morality are relevant in considering the validity of a law and the Legislature has to enforce such societal morality and public acceptance based upon Indian ethos.
• The fundamental right under Article 21 cannot be expanded to include the fundamental right for same sex marriage to be recognised under the laws.
• The court can analyse existing rights for this, it cannot create a new right.
• It is not permissible for the court to override the legislative intent with regard to limiting the legal recognition of marriage to heterosexual couples.

Supreme Court Decisions regarding Marriage
1. Shafin Jahan vs Asokan K.M. 2018

• The SC held that the right to marry a person of one’s choice is integral to Article 21 of the Constitution.
• The right to marry is not explicitly mentioned as a fundamental or constitutional right under the Indian Constitution.
• Article 16 (2): There cannot be any discrimination on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them.

2. Navjet Singh Johar vs Union of India 2018:

• The members of the LGBTQ community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by Constitution.
• They are entitled to equal citizenship and equal protection of law.

Road Ahead

• 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.