Same Rights – Allowing same-sex Marriage under a Special Law | 29th November 2022 | UPSC Daily Editorial Analysis

What's the article about?

• It talks about the allowing same-sex marriage under a special law.

Relevance:

• GS2: Welfare Schemes for Vulnerable Sections of the population by the Centre and States and the Performance of these Schemes.

Analysis:

• The Supreme Court has sought the Government’s response to appeals to allow same-sex marriage under a special law, in another bid to provide legal sanction to widening social customs.
• The non-recognition of same-sex marriage amounted to discrimination that struck at the rights of LGBTQIA+ couples.
• The petitioners cited the Special Marriage Act, 1954, which provides a civil marriage for couples who cannot marry under their personal law.
• It is a first step towards same-sex marriage, which has been legalised in 30-odd countries, including the U.S. where this July the House of Representatives approved legislation to protect such marriages.
• This legislative action came amidst concern that an aggressive Supreme Court could revisit settled laws after it overturned Roe vs Wade on abortion rights.
• After the K.S. Puttaswamy verdict (2017) which upheld the right to privacy and Navtej Singh Johar (2018) that decriminalised homosexuality, there was hope that same-sex marriages would follow, but that has not been the case.

• At depositions in courts and outside, the Centre has opposed same-sex marriage, and said judicial interference will cause “complete havoc with the delicate balance of personal laws”.
• This is perhaps one of the reasons why the Supreme Court may consider allowing same-sex marriage under the Special Marriage Act, and not several other personal laws such as the Hindu Marriage Act.
• Over the past few years, it has passed a series of judgments that challenged conservative society and brought hope and expanded the scope for people who do not conform to age-old social norms.
• Eventually though, even if the Court rules in its favour, the march towards equality for the LGBTQIA+ community will be long and arduous.
• Enforcing something like same-sex marriage in a diverse country with varying customs and traditions will not be easy.

Way Forward:

• Social mindsets are conservative and so well-entrenched that anyone who feels differently is stigmatised, humiliated and ostracised.
• Together with the Court, more needs to be done at the societal level to chip away at conservative views on sex, gender, women and the LGBTQIA+ community.
• Alongside the call for legalising same-sex marriage, activists have been seeking the extension of the benefits of a traditional marriage to same-sex couples, including the right to adopt children.
• As people’s relationships change, and society undergoes transformation, constitutional rights on freedoms and liberties must extend to every sphere, including a same-sex couple’s life.