Context: Recently, the Supreme Court issued notice to the Centre Government on a plea by two gay couples seeking recognition of same-sex marriage under the Special Marriage Act, 1954.

• The legalisation of same-sex marriage is a natural progression towards accepting and integrating the LGBTQIA+ community in India, which has been marginalized and hounded for decades. 

• While the decriminalisation of homosexuality was a positive step towards acceptance, granting civil rights such as marriage and adoption is essential in creating a more diverse and inclusive society.

Issues Raised in Various Petitions

• Violation of Rights: Public Interest Litigation (PIL) filed by two LGBTQ+ couples arguing that the state's refusal to recognise them as married violated their constitutional rights.

• First Petition: It was filed by a couple who have been together for almost a decade.

• Second Petition: It was filed by a couple who have been in a relationship for 17 years and are raising children together. However, their lack of marriage status indicates they cannot have a legal relationship with their children.

• Other Petitions: Some of the petitions seeking recognition of same-sex marriage under India's 1954 Special Marriage Act (SMA) are pending in state-level high courts in Delhi and Kerala.

• Decriminalisation: The recognition of same-sex marriage followed earlier landmark rulings including one declaring privacy a fundamental right and another that decriminalised homosexuality in 2018.

• In 2021 centre Government opposed same-sex marriage in the Delhi High Court stating that marriage in India can be recognised only if it's between a biological man and a biological woman capable of producing children.

• Government’s Stand: The Centre government also stated that considerations of “societal morality” are relevant in considering the validity of a law and it is for the Legislature to enforce such societal morality and public acceptance based upon Indian ethos.

What is the Special Marriage Act (SMA), 1954?

• Marriages in India can be registered under the respective personal laws Hindu Marriage Act, 1955, Muslim Marriage Act, 1954, or under the Special Marriage Act, 1954.

• It is the duty of the Judiciary to ensure that the rights of both the husband and wife are protected.

• The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for civil marriage for people of India and all Indian nationals in foreign countries, irrespective of religion or faith followed by either party.

• When a person solemnises marriage under this law, then the marriage is not governed by personal laws but by the Special Marriage Act.

What are the Problems Faced by LGBTQ+ Communities in India?

• Marginalisation: LGBTQ+ individuals may experience multiple forms of marginalization - such as sexism, poverty, discrimination, social unacceptability or other factors – alongside homophobia or transphobia that negatively impact their mental health.

• Often, such marginalisation leaves LGBTQ+ people without access to the basic services such as medical care, justice and legal services, and education.

• Impact of Family Reactions on LGBTQ+ Children: Rejection and serious negative reactions kept many LGBTQ+ youngsters from telling their parents about their feelings.

• In a society bound by a rigid set of social and cultural norms that dictate the terms and conditions of education, career and marriage, the lack of family support can prove to be a big blow to the mental and physical health of LGBTQ+ people.

• Problems of Terminology: LGBTQ+ people are labelled with negative stereotypes and made fun of, thereby robbing them of their goal of getting recognition and making them feel socially excluded.

• Socially Unrecognised: School uniforms, dress code and appearance, access points for travel (including ticket booking forms, security screening and toilets) are often gendered.

• Frequently, LGBTQ+ individuals are forced to negotiate their gender identity in public while on public transportation.

• As a biological term, sex is always Male, female or transgender. However, as a social category, gender may vary.

• Social Stigma: Homosexuality is still stigmatized in many parts of Indian society, and people who identify as LGBTQIA+ are often ostracized, bullied, and excluded from social activities.

• Lack of legal protection: The Indian legal system does not offer comprehensive legal protection against discrimination and violence based on sexual orientation and gender identity.
  Health issues: Members of the LGBTQIA+ community often face health issues such as HIV/AIDS, depression, anxiety, and substance abuse due to the stress and discrimination they face.

• Limited access to healthcare: Due to social stigma and discrimination, many members of the LGBTQIA+ community face barriers in accessing healthcare services, including mental health care and HIV/AIDS treatment.

• Employment discrimination: Members of the LGBTQIA+ community often face discrimination in the workplace, including being denied jobs, promotions, and other opportunities due to their sexual orientation or gender identity.

• Limited legal recognition: Same-sex marriage is not recognized in India, and LGBTQIA+ couples do not have the same legal rights and protections as heterosexual couples.

What is the Path to Legalisation?

• After India's Supreme Court decriminalised homosexuality, many have raised the question of taking a step towards legalising same-sex marriage.

• The SMA is a law that was passed originally to legalise interfaith unions. Now, LGBTQ+ couples are arguing their marriages should be recognised under the SMA.

• Although awareness about the LGBTQ+ community has increased in India, there is still stigma and resistance to complete acceptance. So far, 33 countries around the world have recognized same-sex marriage and civil unions.

• Along with not recognising same-sex marriages, Indian law does not provide for civil unions. Gay and lesbian couples are also not allowed to have children born with the help of an Indian surrogate mother.

• An LGBTQ+ person can apply to Central Adoption Review Authority for adoption only as a single parent.

LGBTQIA+ community

• LGBTQIA+ is an acronym for Lesbian, Gay, Bisexual, Transgender, Queer/Questioning, Intersex, Asexual/Ally. The plus sign is often added to include other identities and orientations that are not explicitly mentioned in the acronym.

• It is a term used to refer to individuals who identify as any of these sexual orientations or gender identities.

• The community is made up of individuals who may face discrimination, marginalization, and stigma based on their sexual orientation or gender identity. The community advocates for equal rights and acceptance, and works towards achieving societal and legal recognition and protection.

What is mean by homosexuality?

• Homosexuality refers to a sexual orientation where an individual is primarily attracted to people of the same gender. It is a natural variation of human sexuality and is not considered a disorder or mental illness. The term is used to describe a person’s identity, behavior, and desire towards people of the same gender.

What is the stigma around homosexuality in India?

• Cultural and religious beliefs: India is a culturally and religiously diverse country with deep-seated traditional values. Many people believe that homosexuality is against these values and that it is a sin.

• Lack of awareness and education: There is still a lack of awareness and education about homosexuality in India, which leads to many misconceptions and negative stereotypes.

• Discrimination and harassment: People who are open about their homosexuality often face discrimination and harassment from society, including family, friends, and colleagues.

• Legal status: Until recently, homosexuality was illegal in India, which further stigmatized the community.

• Masculinity norms: Indian society often associates masculinity with traditional gender roles, which can make it difficult for people who do not conform to these norms.

• Lack of representation: The representation of LGBTQ+ people in Indian media and popular culture is limited, which can contribute to a lack of understanding and empathy for their experiences.

What is mean by Same-sex marriage?

• Same-sex marriage is the legal recognition of a marriage between two individuals of the same sex.

• It grants same-sex couples the same legal and social recognition, rights, and privileges that are traditionally associated with marriage, including property rights, inheritance rights, and the ability to make decisions for each other in medical emergencies.

• The recognition of same-sex marriage varies around the world, with some countries legalizing it while others do not.

• The issue has been the subject of much debate and controversy, with arguments for and against same-sex marriage based on religious, cultural, social, and legal considerations.

Arguments in favor of same-sex marriage

• Civil Rights: Legalizing same-sex marriage is a matter of civil rights, which ensures equal treatment under the law for all individuals, regardless of their sexual orientation.

• Equality: All citizens should have the right to marry the person they love, irrespective of their gender or sexual orientation.

• Family: Same-sex couples should have the same legal rights as heterosexual couples when it comes to adoption, inheritance, and other family-related matters.

• Mental Health: Same-sex couples who can marry experience greater mental health benefits due to increased social support, greater economic stability, and increased social acceptance.

• Social Stability: Legalizing same-sex marriage can help promote social stability by increasing the number of legally recognized families and reducing social stigmas.

Arguments against same-sex marriage

• Religious Beliefs: Many people oppose same-sex marriage because of their religious beliefs and consider it to be a sin.

• Traditional Family: Some people believe that same-sex marriage is a threat to traditional family values.

• Children: There are concerns that children may be negatively affected by growing up in same-sex households.

• Social Consequences: Some people believe that legalizing same-sex marriage will have negative social consequences, including the breakdown of the family and moral decay.

• Slippery Slope: Some people believe that legalizing same-sex marriage could lead to a slippery slope, where other forms of non-traditional marriage become legal as well.

Key Suggestion

• Education and Awareness: A sustained education and awareness campaign could be launched at various levels, including schools, universities, media, and community organizations to address the social stigma and prejudice against LGBTQIA+ individuals. This could also involve sensitization training for various public and private sector employees to reduce discrimination and bias in the workplace.

• Advocacy: Pro-LGBTQIA+ advocacy groups could play a significant role in lobbying for the legal recognition of same-sex marriages. This could involve building alliances with other civil society organizations, engaging with lawmakers, and using social media to spread awareness about the issue.

• Legal Framework: A new legal framework could be developed to recognize same-sex marriages, which would include rights and protections for LGBTQIA+ individuals. This framework would need to address issues such as inheritance rights, joint property ownership, and the legal recognition of children born to same-sex couples through surrogacy or adoption.

• Consultation: A wide-ranging consultation process could be initiated with stakeholders from different communities, including religious leaders, civil society organizations, and members of the LGBTQIA+ community, to build consensus on the issue.

• Balancing Interests: The government could take a cautious approach to legalizing same-sex marriage, considering the positive effects such as social inclusion and individual rights, and the potential negative effects, such as religious sensitivities and family values. This could involve striking a balance between individual rights and social cohesion, taking into account the unique cultural and social contexts of India.

• Monitoring and Evaluation: The government could set up an independent body to monitor the implementation of same-sex marriage legislation and evaluate its impact on society. This could help to identify areas of success and potential areas for improvement, and ensure that the legal recognition of same-sex marriages is a positive step forward for Indian society as a whole.

Road Ahead

• The hallmark of a progressive nation is reflected in its ability to accept diversity, include minorities, and integrate the marginalised. Legalising same-sex marriage may pave the way for generations to come and become a big step towards reclaiming the diverse, multicultural, and inclusive civilisation that India has always been. Government should strike a balance between individual rights and social cohesion, taking into account the unique cultural and social contexts of India.