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SC Verdicts That Moved The Needle on LGBTQ Rights


The Supreme Court continued to hear a batch of pleas seeking legal recognition for same-sex marriages. On the second day of the hearing, the court heard arguments on the changing legal landscape on LGBTQ rights and the evolution of the right to choose one’s partner.


GS II: Polity and Governance

Dimensions of the Article:

  1. Landmark Judgments by the Supreme Court of India in Upholding Individual Rights and Equality
  2. Centre opposes same-sex marriage in affidavit to Supreme Court
  3. What about other countries?
  4. About Special Marriage Act, 1954

Landmark Judgments by the Supreme Court of India in Upholding Individual Rights and Equality

NALSA v Union of India
  • In April 2014, the Supreme Court upheld the constitutional rights of transgender persons under Articles 14, 15, 19 and 21 of the Constitution in the case of NALSA v Union of India.
  • The court directed the Centre and state governments to grant legal recognition to their gender identity, such as male, female, or the third gender.
KS Puttaswamy v Union of India
  • In 2017, a nine-judge Bench of the Supreme Court unanimously recognised the right to privacy as a fundamental right under the Constitution.
  • In doing so, the verdict overruled the 2013 ‘Suresh Koushal’ ruling, which upheld the constitutional validity of Section 377 of the Indian Penal Code.
Shafin Jahan v Union of India
  • The Supreme Court in March 2018 set aside a Kerala High Court judgment that annulled the marriage of a 24-year-old woman who converted to Islam and married a man of her choice.
  • The ruling recognised the right to choose one’s partner as a facet of the fundamental right to liberty and dignity.
Shakti Vahini v Union of India
  • In March 2018, a three-judge Bench on the Supreme Court issued directives to prevent honour killings at the behest of khap panchayats and protect persons who marry without the approval of the panchayats.
  • In the ruling, the Court recognised the right to choose a life partner as a fundamental right.
Navtej Johar v Union of India
  • In August 2018, the Supreme Court struck down IPC Section 377 to the extent that it criminalised homosexuality.
  • The ruling recognised the LGBTQ community as equal citizens and underlined that there cannot be discrimination in law based on sexual orientation and gender.
Deepika Singh vs Central Administrative Tribunal
  • The Supreme Court in August 2021 decided in favour of a woman who was denied maternity leave for her first biological child on the ground that she had already availed the benefit for her two non-biological children.
  • The ruling recognised “atypical” families, including queer marriages, which could not be confined to traditional parenting roles.

Centre opposed same-sex marriage in affidavit to Supreme Court

The Centre had submitted an affidavit to the Supreme Court, arguing against same-sex marriage in India. Here are the key points:

Sanctity of marriage:

  • The Centre argues that marriage between a biological man and woman is a “holy union, a sacrament and a sanskar” in India, and has a sanctity attached to it.
  • It states that marriage is a delicate balance of personal laws and societal values that have been upheld for generations.

Statutory recognition:

  • The government claims that Parliament has designed and framed marriage laws that recognise only the union of a man and woman to be capable of legal sanction.
  • Any deviation from this accepted norm in human relationship can only happen through the legislature and not the Supreme Court.

Interference with personal laws:

  • Any interference with existing personal laws in the country, which are governed by the customs of various religious communities, could cause complete havoc with the delicate balance of personal laws in the country and in accepted societal values, the Centre warns.

Decriminalisation of homosexuality:

  • The Centre states that the Supreme Court’s 2018 judgment in Navtej Singh Johar decriminalised homosexuality, but did not legitimise same-sex marriage as part of the fundamental right to life and dignity under Article 21 of the Constitution.

Heterosexual marriage is foundational:

  • Statutory recognition of heterosexual marriage has been the norm throughout history and is foundational to both the existence and continuance of the state, according to the government.

No comparison to traditional family unit:

  • The government argues that a same-sex marriage cannot be compared to a man and woman living as a family with children born out of the union.
  • “Living together as partners and having sexual relationship by same-sex individuals [which is decriminalised now] is not comparable with the Indian family unit concept of a husband, a wife and children…” the government contends.

Compelling interest:

  • The Centre claims there is a “compelling interest” for society and the state to limit recognition to heterosexual marriages only.

Request for protection:

  • The petitioners had argued that the 1954 Act should grant same-sex couples the same protection it allows inter-caste and inter-faith couples who want to marry.

What about other countries?

  • A total of 32 countries around the world have legalised same-sex marriages, some through legislation while others through judicial pronouncements.
  • Many countries first recognised same-sex civil unions as the escalatory step to recognise homosexual marriage.
  • Civil unions or partnerships are similar arrangements as marriages which provide legal recognition of unmarried couples of the same or opposite sex in order to grant them some of the rights that come with marriage — such as inheritance, medical benefits, employee benefits to spouses, managing joint taxes and finances, and in some cases even adoption.
  • The Netherlands was the first country in 2001 to legalise same-sex marriage by amending one line in its civil marriage law.
  • In some countries, the decriminalisation of homosexuality was not followed for years by the recognition of same-sex marriage, for instance, in the U.S. the former happened in 2003 while the latter in 2015.

About Special Marriage Act, 1954

  • The Special Marriage Act, 1954 is an Act of the Parliament of India enacted to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party.
  • Marriages solemnized under Special Marriage Act are not governed by personal laws.

The Act has 3 major objectives:

  • to provide a special form of marriage in certain cases,
  • to provide for registration of certain marriages and,
  • to provide for divorce.
Applicability of the Act
  • Any person, irrespective of religion.
  • Hindus, Muslims, Buddhists, Jains, Sikhs, Christians, Parsis, or Jews can also perform marriage under the Special Marriage Act, 1954.
  • Inter-religion marriages are performed under this Act.
  • This Act is applicable to the entire territory of India and extends to intending spouses who are both Indian nationals living abroad.
  • Indian national living abroad.
Succession to the property
  • Succession to the property of person married under this Act or customary marriage registered under this Act and that of their children, are governed by Indian Succession Act.
  • However, if the parties to the marriage are Hindu, Buddhist, Sikh or Jain religion, the succession to their property will be governed by Hindu succession Act.
  • The Hindu Marriage Act is pertinent to Hindus, though the Special Marriage Act is appropriate to all residents of India regardless of their religion applicable at Court marriage.

-Source: The Hindu

March 2024