LEGALIZATION OF SAME SEX MARRIAGE: INTERSECTION BETWEEN LAW AND MORALITY BY - TABASSUM PARVEEN
LEGALIZATION OF SAME SEX MARRIAGE: INTERSECTION BETWEEN LAW
AND MORALITY
AUTHORED BY - TABASSUM PARVEEN
CO-AUTHOR- SYED AALIYA
LL.M. 2ND SEM. STUDENTS
ABSTRACT
This legal research paper
investigates the confluence of law and morality in the context of India's and
the world's legalization of same-sex marriage. In addition, it analyses the
social, ethical, and constitutional issues surrounding the legalization of same-sex
marriage, as well as the numerous arguments for and against its legalization
taking into account constitutional, human rights, and cultural aspects of the
debate. This legal research paper examines the intersection between law and
morality in the context of the legalization of same-sex marriage. The paper
delves into the debate between societal morality and constitutional morality
and its implications for the legalization of same-sex marriage. The Hart v.
Devlin and Hart v. Fuller debates are analyzed to understand the different
perspectives on the role of law in shaping moral values and the limits of state
intervention in private behavior and examined the effects of legal recognition
of same-sex marriage on the lives of same-sex couples and society as a whole,
as well as the role of the judiciary in moulding same-sex marriage recognition.
The research questions aim to understand the jurisprudential aspects of the
debate on same-sex marriage and how it intersects with the concepts of morality
and law.
This paper will conclude with
recommendations for future policy and legal reform towards the legalisation of
same-sex marriage, emphasising the importance of anti-discrimination laws,
education and awareness, family law reform, and international cooperation. This
research paper is intended to contribute to the ongoing discussion on the legal
recognition of same-sex marriage and pave the way for greater equality and
social inclusion.
INTRODUCTION
The recognition of
same-sex marriage has been a controversial and hotly contested issue across the
world. The 21st
century has witnessed new trend and conception of marriage which calls for
gender neutral relation rather than a gender specification. Since, the
Netherlands’ legalization of same-sex marriage in 2000, over 34 countries have
legalized same-sex marriage either through legislation or through judicial
court. At present more than 50 countries allows same sex couples to legally
adopt children. Same-sex marriage is a phenomenon that has given a rise to
moral, religious and legal debates all over the world and the legality and its
morality has been hotly debated. Supporters of same-sex marriage says that in
legalizing marriage between the two persons of same sex there is no immorality
rather it is to ensure human rights, equality between sexual orientations and
reduces discrimination in society. Proponent of same-sex marriage argues that
sexual orientation is considered as a ground of discrimination in European
Union law Article 21 of Charter of Fundamental Rights of the Union[1]. While on the other hand, the opponents of the
same-sex marriage argues that this kind of marriage gives rise to a concern
that it is immoral and unnatural and it would affect the tradition and shatter
the traditional family system. According to the critics, the same-sex marriage
is exclusively a western phenomenon which cannot function in the country like
India which is deeply religious and culture and where the institution of
marriage is considered as a “sacred bond”.
LITERATURE
REVIEW
Countries have grappled
with the intersection of human rights, societal norms, and cultural and
religious beliefs with regard to the legalization of same-sex marriage. This
literature review focuses on the legal and social realities of same-sex
marriage.
The authors of
"Same-Sex Marriage in India: Examining the Legal and Social
Realities"[2] argue that
although the legal framework for same-sex marriage exists in India, social and
cultural barriers still hinder its implementation. The authors analyse the
numerous obstacles faced by the LGBTQ community in India, such as social
exclusion and discrimination, and propose a road map for the recognition of
same-sex marriage in India.
"Decriminalisation
of Homosexuality in India: The Politics of Right-Wing Populism"[3] is an
article that discusses the legal and political aspects of the decriminalisation
of homosexuality in India. The article contends that the Indian government's
decision to decriminalise homosexuality was a response to international pressure
and Indian society's changing attitudes. The role of right-wing political
parties in opposing the decriminalisation of homosexuality is also examined.
One of the seminal book
on the topic is "Marriage, Sexuality, and Gender" by Sylvia Tamale[4]. The book
argues that traditional African values and customs need to be reinterpreted to
accommodate the rights of marginalized groups, including LGBTQ individuals.
In "Same-Sex
Marriage and the Constitution" by Evan Gerstmann[5],
from a constitutional standpoint, the author examines the various arguments for
and against same-sex marriage. The author argues that the Constitution
guarantees the recognition of same-sex marriage as a fundamental right and that
any laws prohibiting same-sex marriage are unconstitutional.
The "Same-Sex
Marriage: A Constitutional and Social Debate”[6],
the author in this article provides a comprehensive overview of the
constitutional and social issues surrounding same-sex marriage in the United
States. It is a valuable resource for scholars, policymakers, and advocates
seeking to understand the legal and ethical dimensions of the debate.
RESEARCH
OBJECTIVE
The objective of a legal
research project on the legalisation of same-sex marriage and its intersection
with law and morality is to examine critically the legal, social, and moral
issues surrounding the acceptance of same-sex marriage.
Specifically, the
objective of this project is to examine the tensions between societal and
constitutional morality in the context of same-sex marriage. Further, to
investigate the Hart v. Devlin and Hart v. Fuller debates and their
implications for the legalisation of same-sex marriage. This project intends to
contribute to the jurisprudential understanding of the relationship between law
and morality and the role of the judiciary in shaping societal values through
its analysis.
In addition, the project
also considers the moral and ethical implications of legalising same-sex
marriage, as well as the impact of societal norms and values on the debate. The
project also investigates and explores how the law and society have influenced
each other's perspectives and how those perspectives have changed over time. It
evaluate the impact of public opinion and political will on the issue, as well
as the role of the judiciary in influencing the legal recognition of same-sex
marriage.
HYPOTHESIS
·
The
legalisation of same-sex marriage in India will result in a positive shift
towards a constitutional morality that prioritises the rights and well-being of
LGBTQ people, their families, and society as a whole.
·
Legalizing
same-sex marriage will increase social acceptance of LGBTQ people, reduce
stigma and discrimination, and promote equality and inclusion.
RESEARCH
QUESTIONS
Here are some potential
research questions for a legal research project on the legalization of same sex
marriage and its intersection with law and morality:
1.
What
is the attitude to same sex marriage around the world?
2.
How
has the Hart v. Devlin debate influenced the legal and social discourse around
same-sex marriage?
3.
How
do societal and constitutional morality intersect in the context of same-sex
marriage, and what implications does
this have for the legalization and recognition of same-sex unions?
4.
How
do religious and cultural beliefs and values impact the legal and moral debates
around same-sex marriage, and what role should they play in the decision-making
process?
5.
What
are the advantages and disadvantages of legalizing same sex marriage?
RESEARCH
METHODOLOGY
The doctrinal research methodology
has been used and relied on both primary sources like Acts, Constitution, conventions
and secondary sources like journal articles, case laws, websites and reports.
METHOD
OF CITATION
The Indian Law Institute (ILI) Method
of citation has been used.
Several historical and
cultural factors impact the debate on same-sex marriage in India. The colonial
legacy of Section 377 of the Indian Penal Code, which criminalised sexual
activities "against the order of nature," including same-sex sexual activities,
is one of the most significant factors. This law was inherited from British
colonial rule in India and remained in effect until 2018, when the Supreme
Court of India invalidated it in the landmark Navtaj Singh Johar v. Union of India[7]
case. Religion and traditional cultural
values, which have been used to justify discrimination and stigma against LGBTQ
individuals, are another factor. Hinduism, which is the dominant religion in
India, has a rich and varied history, and attitudes towards same-sex relationships
vary greatly among Hindu communities. However, many conservative Hindu
organisations have opposed the legalisation of same-sex marriage on the grounds
that it violates traditional family values and moral standards. Other major
religions in India, including Islam, Christianity, and Sikhism, have also
opposed same-sex marriage. In India, this has created a religious and cultural
barrier to same-sex relationships and marriage. In addition, historically,
Indian society has been patriarchal and hierarchical, with rigid gender roles
and norms that have contributed to the marginalisation of LGBTQ individuals.
The intersectionality of caste, class, and gender exacerbates the
stigmatisation and discrimination experienced by LGBTQ individuals.
These historical and
cultural factors have shaped the debate on same-sex marriage in India, creating
a complex and contested landscape for the recognition of LGBTQ individuals'
rights. Recent legal and social changes in India, including the repeal of
Section 377 and the growing visibility and advocacy of LGBTQ individuals and
their allies, have created new opportunities for the recognition of same-sex
marriage and the promotion of greater equality and inclusiveness.
2. RULES
AND REGULATIONS REGARDING
MARRIAGE IN
INDIA:
There are different
countries and regions in the world which are different from each other on the
ground of their own unique religious characteristics, cultural, political and
social awareness level of people which would definitely plays a significant
role in shaping their own laws regarding the legalization of same-sex marriage.
The country with the people of liberal notion will have different approach from
the country which have conservative and traditional culture following citizen.
Basically, same-sex marriage is the
union of two persons belonging to the same gender in which a man marries a man
and a woman marries a woman. However, traditionally marriage is considered as a
union of two opposite gender which depicts a socially and legally recognized
union of husband and wife which means i.e. male and female. In India marriage
is very significant and important social institution that involves the union of
two opposite gender and considered a sacred bond between individuals and their
families.
There
are two ways of legalizing any marriage in India
1. By Personal Law,
·
The
Hindu Marriage Act, 1955
·
The
Muslim Marriage Act,
·
The
Christian Marriage Act,
2. By Special Marriage Act, 1954
In each of the above mentioned laws,
there are essential requirements to be followed for entering into a legally
valid marriage which contains the age, consent, soundness of mind and most
importantly the requirement of biological male and female.
The Special Marriage Act
of 1954 is a secular statute that permits the registration of marriages between
people of different religions, castes, or nationalities. Moreover, it permits
the registration of same-sex marriages. However, same-sex marriages are not explicitly
mentioned in the act; only "bridegroom" and "bride" are
mentioned.
In its 2009 decision in Naz Foundation v. Govt. NCT of Delhi[8], the Delhi
High Court ruled that the Special Marriage Act does not prohibit same-sex
couples from marrying. The court noted that the act does not specify that the
bride and groom must be of different sexes and that it is possible to interpret
the act so that same-sex couples are permitted.
The decision in Naz
Foundation was later upheld by the Supreme Court of India in its 2018 landmark
decision in Navtaj Singh Johar v. Union of
India[9], which
decriminalised homosexuality and recognised the rights of same-sex couples to
live with dignity and enter into legal partnerships comparable to marriage. The
court also ordered the government to provide same-sex couples with equal legal
protection and rights.
In states where the
Special Marriage Act of 1954 has been implemented, same-sex couples may now
register their marriage. However, not all states have implemented the act, and
in those states same-sex marriage is not legally recognised.
The 1970s saw a rise in LGBT rights
movement, particularly in the western world, during the contemporary era.
Although homosexual individuals initially had no desire in getting married
because they thought it was a conventional institution, they were successful in
establishing these unions. Between the 1980s and 1990s, a movement to legalise
same-sex relationships began to take hold. In 1989, Denmark paved the way by
becoming the first country to officially recognise same sex relationships. The
Netherlands was the first country to formally recognise same-sex unions in
2001, followed by Belgium in 2003, Spain and Canada in 2005, South Africa in
2006, Norway in 2008, Sweden in 2009, and Portugal in 2010.
2015 marked the
legalisation of same-sex marriage in the United States, following a landmark
Supreme Court decision in Obergefell v. Hodges[10]
On June 26, 2015, the United States Supreme Court ruled in a landmark
decision that the 14th Amendment requires all states to license marriages
between same-sex couples and to recognize all marriages that were lawfully
performed out of state.
Since then, thousands of same-sex couples across the country have been legally
married. Legalising same-sex marriage has been credited with promoting greater
legal and social equality for LGBT individuals and contributing to a larger
cultural shift towards greater acceptance and inclusion.
According to a 2017
national postal survey on same-sex marriage[11],
the majority of Australians support legalising same-sex marriage. In 2018, the
Australian Parliament passed legislation legalising marriage between
individuals of the same gender[12]. The
legalisation of same-sex marriage in Australia has been credited with
increasing social acceptance and inclusiveness of LGBT individuals and relationships.
For the western minded person who engages in same-sex
relationship, which may culminate into marriage, it is his/her fundamental
right to marry whoever he/she wants, and does not matter whether or not such a
person is of the same gender. It is important to note that this conception is
basically a libertarian view in which case what one does with his/her body, but
that does not constitute harm to the society, is his/her own right.
The legalization of same-sex marriage is a complex
issue that intersects law and morality. On one hand, it is a legal issue
because marriage is a legal institution that is regulated by the state. On the
other hand, it is a moral issue because marriage is also a social and cultural
institution that is deeply rooted in religious and cultural traditions.
The set of guidelines and expectations for human
social behaviour known as morality or moral standards establishes shared
beliefs and notions about right and wrong, good and evil, conscience, honour,
duty, and other topics. Other aspects of society's moral and spiritual
existence. The development and application of legal regulations are spiritually
based on moral principles. It may be claimed that many times, people in society
follow certain legal requirements not because they are aware of and comprehend
the law, but rather because they were raised with certain moral values. But
there will inevitably be disagreements and conflicts as law and morality are
applied to social life. Generally speaking, there are no significant
inconsistencies between morality and law because they both aim to the human
race. Progressive legislation, however, still has to regulate the social order
even as it places individuals at its centre, therefore it occasionally falls
short of what people morally require. Consequently, there are actions that,
while not illegal, are seen as morally wrong. However, as the law was
established to defend moral ideals, breaking the law is frequently a moral
transgression. A decent and civilised society must, after all, guarantee that
all of its members are equal in every way.[13]
Legally, the issue of same-sex marriage revolves
around the interpretation of constitutional rights and the extent to which the
state can regulate marriage. Equal protection and due process are violated by
denying same-sex couples the right to marry, according to proponents of
same-sex marriage. They contend that there is no valid reason for the state to
deny same-sex couples the same legal benefits and protections as heterosexual
couples. Opponents of same-sex marriage argue that marriage is a sacred
institution defined as the union of one man and one woman. They maintain that
allowing same-sex couples to marry undermines the traditional definition of
marriage and poses a threat to the institution itself. They also argue that
marriage serves a reproductive function, which same-sex couples cannot fulfil. [14]
In India, same-sex
marriage remains a topic of debate and discussion. Existing Indian law does not
recognise same-sex marriage, and there is no legal framework for same-sex
couples to register their relationships.
Article 14 of the Indian
Constitution protects the right to equality and non-discrimination, which is a
fundamental right. The Indian Supreme Court has acknowledged the rights of the
LGBTQ+ community in a number of landmark decisions, including Navtaj
Singh Johar v. Union of India[15], which
decriminalized consensual same-sex relationships and held that sexual
orientation is an essential characteristic of privacy and personal autonomy.
Nonetheless, legal
recognition of same-sex marriages remains a contentious issue. In Naz Foundation v. Govt. of NCT of Delhi[16],
the Delhi High Court ruled that Section 377 of the Indian Penal Code, which
criminalized same-sex relationships, violated the right to equality and be
treated equally and without discrimination. The court did not, however, address
the issue of same-sex marriage. In 2020, a petition seeking recognition of
same-sex marriage under the Hindu Marriage Act of 1955 was filed with the Delhi
High Court. The petition asserted that denying same-sex couples the right to
marry violates their fundamental rights and that the Hindu Marriage Act, 1955
does not define marriage as being between a man and a woman.
The issue of same-sex marriage in
India is, in conclusion, a complex intersection of law and morality. Despite
the fact that the Indian Constitution guarantees the right to equality and
nondiscrimination and the Supreme Court has recognized the rights of the LGBTQ+
community, the legal recognition of same-sex marriage is still a matter of
debate and discussion. The outcome of the pending case before the Delhi High
Court will be a significant turning point in India's ongoing fight for LGBTQ+
rights.
6.1 RELIGIOUS AND CULTURAL BELIEFS
AND VALUES
Granting marriage right to same sex
couples would legitimize morally wrong union as marriage has always viewed from
religious point of view. Marriage has always been seen as the union of a man
and a woman. Under Hindu scriptures Apasthamba stated that Marriage was meant
for doing good deeds and for attainment of Moksha, performing religious duties
and begetting a son who enables a man to get deliverance from suffering of
hell.[17] Thus, it
raises an issue that it is impossible in the case of same sex marriage to beget
a son. Thus, it would defeat the very purpose of the marriage i.e. Moksha.
Marriage is defined by Raghunandan as the acceptance by the groom of a girl
being given away by her guardian.[18] In case Gopal Kishan v. Mithilesh Kumari the Allahabad High Court observed that marriage
is not performed for emotional gratification and it is regarded as part of the
life of the soul. It is holy spiritual union corresponding to consortium omntum
vitoe of Rome, a process by which the husband and wife become one.[19] Under
Muslim Law Marriage is a contract for the purpose of legalizing sexual
intercourse and procreation of children and the object of marriage is to
restraint of sexual passion, the ordering of domestic life, the increase of the
family, the discipline of the same in the care and responsibility of wife and
children and the upbringing of virtuous children.[20]
Consequently, in every personal law the marriage is seen as culturally or
traditionally whether it is considered sacrament or contractual there is some
essential conditions to be fulfilled firstly, there shall be two opposite
gender and secondly, the purpose of the marriage is to procreate children and
perpetuate the family line on the other hand, the purpose of the same sex
marriage is only personal gratification of two individuals so, if state allows
same sex marriage it would not fulfil the purpose of marriage because it does
not involve two opposite sex and in such kind of marriage they cannot naturally
or biologically procreate children which would not add to the survival of human
race. They can only have children by adoption or by surrogacy and it is said by
some authors that the well-being of the whole community requires that children
should, so far as possible, be raised by their own parents within the family
which would involve both the father and mother. These children would be lacking
of either the awareness of the fatherhood or motherhood.[21]
Personal laws governing marriage and
family law in India are specific to different religious communities, and there
is no universal civil code applicable to all citizens. This is one of the
primary obstacles to the legal recognition of same-sex marriage in India.
The issues of societal
morality versus constitutional morality, as well as the Hart-Devlin and Hart
Fuller debates, are indeed relevant to the study of same-sex marriage and its
intersection with law and morality. These debates revolve around the extent to
which the law should reflect and enforce prevailing social morality, and
whether there is a duty to obey the law regardless of its content.
The Hart-Fuller debate focused on the
idea of a "law's inner morality" and whether there is a necessary
connection between law and morality. Hart argued that there are certain
principles of legality that are necessary for a legal system to function
properly, such as the principle that laws should be general, public, and
prospective. Fuller argued that law and morality are inherently connected, and
that laws must meet certain moral standards in order to be considered
legitimate. Fuller criticized Hart's view as being too narrow and technical,
and argued that it failed to take into account the social and moral purpose of
the law. [22]
The Hart v. Devlin debate
is a classic illustration of the conflict between the concepts of morality and
individual liberty. The debate argues on whether or not the state has the
authority to legislate morality. The Hart v. Devlin debate is especially
pertinent in the context of the legalisation of same sex marriage because it
raises the fundamental question of whether the state has the authority to
regulate sexual behaviour and relationships.
H.L.A. Hart, a legal
philosopher, argued that the law should not enforce moral standards that are
unnecessary for the protection of individual rights. Hart argued that there
should be a distinction between immorality and illegality. He believed that the
government should only intervene when there is an obvious risk to others. This
argument has been used by proponents of same-sex marriage who believe that
consenting adults have the right to engage in a consensual relationship, and
the state should not interfere in their private lives. They argue that the role
of the state should be limited to safeguarding individual rights and preventing
harm to others[23].
In order to safeguard the moral
fabric of society, Devlin argued that the state has the authority to legislate
morality. This argument has been used by opponents of same-sex marriage who
believe that the legalization of same-sex marriage would undermine the
traditional moral values of society.[24]
These debates are relevant to the
study of same-sex marriage because they raise fundamental questions regarding
the relationship between law and morality. Should the law reflect prevailing
social morality, or should it protect the rights and liberties of individuals?
Is a connection between law and morality required, or can they be separated?
When analysing the legal and moral implications of same-sex marriage, it is
crucial to consider these questions.
In recent years, courts
all over the world have been debating whether same-sex marriage is a
constitutionally protected fundamental right. The Hart v. Devlin debate has
shaped the arguments presented in these cases significantly. Those who argue
for the legalisation of same-sex marriage frequently cite Hart's views on the
importance of morality, while those who argue against the legalisation of
same-sex marriage frequently cite Devlin's views on the importance of morality.
In general, the Hart v. Devlin debate
illuminates the intricate relationship between law, morality, and individual
freedom. It has significant repercussions for the legalisation of same-sex
marriage and the ongoing fight for LGBTQ+ rights.
Legalising same-sex
marriage would provide LGBTQ individuals and their families with increased
legal recognition and protection. This would include access to benefits such as
health insurance, inheritance, and property rights, as well as the ability to
make medical decisions for their spouse. Legalising same-sex marriage would
assist in reducing stigma and discrimination against LGBTQ people and their
families. This would contribute to the development of an inclusive society and
increase social acceptance. The legalisation of same-sex marriage has been
shown to improve the mental and physical health of LGBTQ individuals by
reducing the stress, anxiety, and depression associated with discrimination and
lack of legal recognition. Economic benefits include increased economic
activity and job creation, as well as increased tax revenue from same-sex
couples, if same-sex marriages are legalised.
Discussing the benefits of the legalisation
of same-sex marriages is important, but we must not lose sight of the
difficulties involved. Legalising same-sex marriage could be met with
opposition from conservative religious and cultural groups, who may argue that
it violates traditional family structures and values. Some individuals may view
same-sex relationships as morally objectionable or unnatural, and may oppose
the legalization of same-sex marriage on these grounds. This may be based on
personal beliefs, cultural norms, or social conventions. Legalising same-sex
marriage would necessitate legal reforms and changes to existing statutes,
which could be time-consuming and complicated. Making legal same-sex marriage
would require government and legislative support, which may be challenging to
obtain due to political and social factors. The legalisation of same-sex
marriage may face social backlash, including protests.
1. IT VIOLATES NATURAL LAW
Marriage is not just
relationship between two persons but it is rooted in human nature and governed
by natural law. Natural law’s primary purpose is that good is to be done and
evil is to be avoided. A man by his natural reason can perceive what is morally
right or wrong for him. If we allow homosexual marriage it will violate the
natural law as the true marriage is the union of heterosexual couple for the
purpose of procreating children and contributing to continuation of human race.
2. CHILDREN ALWAYS LACKING OF EITHER OF
A FATHER OR MOTHER
It is in the best
interest of children that they should be raised under the influence of their
both father and mother and which is not possible in same sex marriage. It is
evident from difficulties faced by orphans or children those were raised by
single parent, relative or foster parent and also that the well-being of the
whole community requires that children should, so far as possible, be raised by
their own parents within the family which would involve both the father and
mother otherwise, these children would be lacking of either the awareness of
the fatherhood or motherhood.[25]
3. IT DOES NOT CREATE A FAMILY BUT A
NATURALLY STERILE UNION
Same sex marriage is
inherently sterile. Same sex couple can’t naturally or biologically procreate
babies, they can only have children by adoption or by employing artificial
means or surrogacy. Therefore, we cannot call the same sex union a marriage and
give it the benefits of true marriage.[26]
4. MAY LEAD TO DEMAND FOR POLYGAMY,
INCEST, PEDOPHILIA AND OTHER SEXUAL IMMORALITY
Those who demand that
same sex marriage must be legalized have an obligation to explain that why
marriage is not appropriate for any other deviant sexual pattern adults and
minors who would wish to enter into marriage. If same sex marriage must be
legalized then ehy should not polygamy, incest, pedophilia and other sexual
immorality? How will these practice be denied if “same sex marriage” is
granted.[27]
In many countries, the judiciary has
played a crucial role in shaping the legal recognition of same sex marriage. In
numerous instances, courts have interpreted constitutional provisions and human
rights laws to grant same-sex couples legal recognition. This has frequently
been driven by the recognition of individuals' fundamental rights, such as the
right to equality and nondiscrimination. In a number of nations, judicial
decisions have paved the way for legislative action to legalise same sex
marriage.
Notably complex and dynamic is the
relationship between the judiciary, public opinion, and political will. And
vice versa, judicial decisions can shape public opinion and influence political
will. In certain instances, the judiciary has been perceived as taking the lead
on LGBT rights issues where political leaders have been reluctant to act. In
other instances, political leaders have pioneered the legalisation of same-sex
marriage, followed by the judiciary. In the end, same-sex marriage recognition
is the result of a complex interaction between legal, social, and political
factors. In India, the judiciary has played a crucial role in shaping the legal
recognition of same-sex marriage. In 2009, the Delhi High Court issued a
landmark judgment in the case of Naz
Foundation v. Government of NCT of Delhi, which
decriminalized same-sex sexual activities between consenting adults. The court
held that Section 377 of the Indian Penal Code, which criminalized same-sex
sexual activities, violated the fundamental rights of LGBT individuals to life,
liberty, and equality guaranteed under the Indian Constitution. Since then,
there have been several legal challenges seeking recognition of same-sex
marriage in India. In 2013, the Supreme Court of India in the case of Suresh
Kumar Koushal v. Naz Foundation upheld the constitutionality of Section 377,
effectively overturning the Delhi High Court's ruling. However, in 2018, in the
case of Navtaj Singh Johar v. Union of
India, the Supreme Court struck down Section 377 as unconstitutional,
recognizing the rights of LGBT individuals and paving the way for the legal
recognition of same-sex relationships.
Despite this landmark
ruling, same-sex marriage is not yet legally recognized in India. However,
there have been several petitions and legal challenges seeking its recognition,
and it remains a topic of significant public debate and discussion. The
judiciary continues to play an important role in shaping the legal recognition
of same-sex marriage in India, with several cases pending before various courts
seeking its recognition.
In terms of public
opinion and political will, India remains a conservative society with deeply
ingrained societal norms and values around marriage and family. While there is
growing support for LGBT rights and recognition of same-sex relationships,
there remains significant opposition from conservative groups and political
leaders. The issue of same-sex marriage remains a politically sensitive one,
and there is currently little political will to take up the issue of its
legalization. However, as public opinion continues to shift and as legal
challenges seeking recognition of same sex marriage continue, it is possible
that India may eventually join the growing number of countries legalizing
same-sex marriage.
CONCLUSION
Marriage has always been considered a
sacramental union of a man and a woman in India and around the world as well
but a drastic stroke to this notion of society was seen in the 21st
century when the people from LGBTQ community came forward and filed a petition
to legalize the same sex relationship and finally after the long struggle in
2018 they got the same sex relationship legalized by decriminalizing the
section 377 of IPC in the case Navtej Singh Johar v. Union of India. As the relationship has been legalized they are
demanding for the marital relationship because being in just a civil relationship
will not allow them to be entitled to various benefits of the laws of Indian
for instance one partner cannot be the nominee of the other under Insurance
Act, adoption and inheritance. Same sex marriage is a very complex and
sensitive issue as India is culturally and ethically rich country where the
institution of marriage is considered only sacramental and the largest
democracy in the world as well. Thus, there are two groups of people, the
supporters and the critics of legalizing same sex marriage. Supporter says that
it is a significant step towards ensuring equality and the right to marry for
all individuals, regardless of their sexual orientation. It promotes inclusivity, human rights, and
equal treatment under the law. Many countries and jurisdictions have already
legalized same sex marriage, recognizing it as a fundamental civil right, on
the other hand the critics view the legalizing of same sex marriage morally
wrong as it is against the natural law which requires two opposite sex for entering
into legally and culturally valid marriage. The purpose of marriage is to
procreate and the continuation of human race which the same sex marriage can’t
provide.
RCOMMENDATIONS
1. Many
children in India are in state custody. Various agencies have reported that
Covid has slowed the rate of adoption and fostering in the country. On
the other hand, same sex couples are willing to sign up and
lessen the strain. Ensuring elimination of discrimination would provide the
dual benefit of parenthood to couples and support system to the
children.
2. The consensus-based analysis by the ECtHR may be problematic. States may not have reasonable and objective justification behind the unequal or difference in treatment among the people that may in consequence affect the interest of minorities while dealing with sensitive moral or ethical issues. Therefore, ECtHR is required to apply a strong assertive role in protecting and promoting equal marriage rights rather than applying more consensus-based approach analysis.
3. The “European consensus” used in determining margin of appreciation is ambiguous and vague as not properly defined by the court nor is the court consistent in its application. Further, it also provides no crystal clarity regarding interpretation or application of Article 12 ECHR in context of same-sex couples. Consensus among states may be dependent upon various grounds: national laws, practices, social and emerging trends etc. Therefore, court may consider social and emerging trends along with legislations of states as a ground of existence of European consensus rather to focus on lack of legislation on same-sex marriage in certain member states.
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[1] Charter of Fundamental Rights of the Union, Article
21 states that any discrimination based on any ground such as sex, race,
colour, ethnic or social origin, genetic features, language, religion or
belief, political or any other opinion, membership of a national minority,
property, birth, disability, age or sexual orientation shall be prohibited.
[2] Narrain, A., & Gupta, A. “Same-Sex Marriage in
India: Examining the Legal and Social Realities” 7 Indian Journal of Human
Rights and Law 1-22 (2013).
[3] Rao, Rahul. "Decriminalization of Homosexuality
in India: The Politics of Right-Wing Populism." 14 International Journal
of Law in Context 248-262 (2018).
[4] Tamale, S. (2011). Marriage, Sexuality and Gender.
Makerere University Institute of Social Research.
[5] Gerstmann, Evan. "Same-Sex Marriage and the
Constitution." 63 Political Research Quarterly 503-515 (2010).
[6] Cruz, D. B., & Engel, S. M. “Same-sex marriage: A
constitutional and social debate” 66 Journal of Social Issues 287-302 (2010).
[7] (2018) 10 SCC 1
[8] (2009) 111 DRJ 1 (Delhi HC 2009)
[9] (2018) 10 SCC 1
[10] 576 U.S. (2015).
[11]Australian Marriage Law Postal Survey can be found on
the official website of the Australian Bureau of Statistics available at: https://marriagesurvey.abs.gov.au/results (last visited
on May 03, 2023).
[12] Marriage Amendment (Definition and Religious
Freedoms) Act,2018
[13] Same-Sex Marriage from the Perspective of Tradition,
Morality and Law in Vietnam available at: http:// www.law.unimelb.edu.au (last visit on
May 05, 2023).
[14] Shruti Narayan “Same Sex Marriage in India: A Legal
and Moral Quagmire” Harvard International Review (2020).
[15] Supra note 9.
[16] Supra note 8.
[17] R.K. Agarwal, Hindu Law 36 (Central Law House,
Allahabad, 25th edn., 2017).
[18] Id. at 38.
[19] AIR 1979 All. 316.
[20] Aqil Ahmad, Mohammedan Law 109 (Central Law Agency,
Allahabad, 26th edn., 2016).
[21] Sir Alfred Denning, The Changing Law 121 (Universal
Law Publishing Pvt. Ltd. 2nd edn., 2012).
[22] Farber, D.A. & Sherry “Same Sex Marriage and the
Socially Constitutive Function of Law” 79 Virginia Law Review (1993).
[23] David Archard “The Devlin-Hart Debate and the Moral
Limits of Law" Journal of Social and Legal Studies (2002)
[24] Ibid.
[25] Sir Alfred Denning, The Changing Law 121 (Universal
Law Publishing Pvt. Ltd. 2nd edn., 2012).
[26] 10 Reasons why Homosexual Marriage is Harmful and
must be opposed available at: http://www.catholichawaii.org (last visited on May 07, 2023).
[27]Andrew F. March,“What Lies Beyond Same Sex Marriage?
Marriage, Reproductive Freedom and Future Persons in Liberal Public
Justification” 27 Journal of Applied Philosophy (2010).