In this, the third part of the series on the Marriage Equality Verdict, the reasoning employed by the majority three judges to deny the right to an abiding civil union will be discussed. The concept of Civil union was proposed by the Chief Justice of India (CJI) DY Chandrachud in his minority opinion,

The majority judgement, despite its careful usage of examples to substantiate its arguments, does not fare well in the reasoning it employs to deny the flow of rights. The CJI traced the right to enter an abiding civil union to Articles 19, 21 and 25. In opposition to this tracing, the majority judgement only recognizes a paltry right to relationship withing just Article 21.

First, there is a complete absence of reasoning as to why the rights such as Right to form Association or Right to Settle in any part of India does not give rise to right to civil union. There are examples but not the ones relevant to the case.

For example, a poetess wanting the state to create infrastructure to publish her poem (an example used by Justice Bhat) is not the same as a transperson wanting the state to sensitise its police force to not harass them. How are these two different? The police are a monopoly entity in maintaining the security of the land while the poetess can get numerous avenues to publish her poetry.

In NALSA vs. Union of India [(2014) SCC 438] Court held that public awareness programmes were required to tackle existing stigma against the transgender community. It also directed the Central and State Governments to take several steps for the advancement of the transgender community. The same way, a man asking the government to construct a house under 19(1) (e) is not same as a gay couple wanting the state to make provisions that would make discrimination against them by private persons in giving a property on rent, illegal.

There is no cogent reasoning on why the right to a civil union should not flow from Article 25 in Justice Bhat’s opinion. Justice P.S. Narasimha, in his opinion, disagrees with the CJI’s’ argument that a right to a civil union flows from Article 25. It is in this opinion that we find reasoning as to why such right cannot flow from Article 25. He states that if CI’s interpretation is allowed, the enumerations in Article 19 become redundant since these freedoms can be claimed to be actions on the basis of one’s own moral judgement under Article 25 and freedom of conscience.

However, it is well settled jurisprudence through Supreme Court judgement in the case of RC Cooper vs. Union of India [AIR 1970 SC 564], that the idea of fundamental rights being watertight compartments which do not interact with each other has been discarded and the court’s decision in RC Cooper has been affirmed by the Supreme Court in Maneka Gandhi vs. Union of India [(1978) 1 SCC 248]. This has been reiterated in Justice DY. Chandrachud (as he was then) in his opinion, in Justice K.S. Puttuswamy vs. Union of India [(2017) 10 SCC 1)].

Therefore, having similar kinds of rights in Article 25 and Article 19 does not make either of those articles redundant.  It rather enriches the rights under these Articles as having backed by two fundamental rights. Therefore, the reasoning that is given in the judgement is peculiar and seems almost forced towards the conclusion it powers.

Positive Obligation of the State- the extent?

While Justice Bhat’s opinion did not provide enough reasoning to oppose the flow of right to an abiding civil union from Articles 19 and 25, it deals plenty on why the state cannot be obligated to create a parallel institution because a certain right in Part III.

Justice Bhat disagreed with the consistent observation CJI made on state’s obligation to recognise the relations to give the enjoyment of rights a full meaning. He agreed with the CJI on the fact that the rights have both positive obligation on part of the state and a negative content where there are restrictions on state power. However, he states that the extent of positive obligation differs. In the cases where the court expanded the scope of fundamental rights and asked the state to perform a duty, Justice Bhat stated that, were based on effect of laws or policies based on statutory provisions.[1] To order a social institution or re-arrange existing social structures by creating an entirely new kind of parallel framework for non-homosexual couples requires a completely new code.[2]

On the argument that the Supreme Court in the cases of Common Cause vs. Union of India [(2018) 5 SCC 1], NALSA vs Union of India [(2014) 5 SCC 438] and Vishaka vs. State of Rajasthan [(1997) 6 SCC 241)] -Justice Bhat gave a reasoning as to why those cannot be relied upon in the current situation.

In Common Cause, the Court reaffirmed the right to die with dignity as a fundamental right. Apart from that, the court also dealt with judgement in the case of Gian Kaur vs State of Punjab [1996 SCC(2) 648] stating that euthanasia could be made lawful only by legislation and later relied on by Aruna Ramchandra Shanbaug vs. Union of India[(2011) 4 SCC 454)]. The court stated as follows: “The two-Judge bench in Aruna Shanbaug (supra) has erred in holding that this Court in Gian Kaur (supra) has approved the decision in Airedale case and that euthanasia could be made lawful only by legislation.”

For Common Cause, Justice Bhat argued that not only was it more of a judgement that dealt with workability and need to elaborate the guidelines formulated in Aruna Shanbaug rather than forming new legislation, but it was also influenced by the Law Commission recommendations which formed additional basis for the Court’s discretion and the final guidelines.

In Vishaka vs. State of Rajasthan, the Supreme Court laid down the guidelines against Sexual harassment at workplace and these guidelines were mandated to be followed by all organizations/institutions both in public and private sector. The Supreme court went on to define Sexual Harassment and duty of the employers etc. The Parliament took almost 15 years to enact legislation to give effect to the guidelines with a law, after the judgement in 1997.

For Vishaka, Justice Bhat argued that there was all round co-operation and Union of India too expressly indicated that guidelines ought to be formulated by the Court. The trigger for the guidelines in Vishaka, Justice Bhat stated, was a resolve that gender equality manifested in Articles 14 and 15 of the Constitution as well as right to dignity) and the right to one’s profession and employment under Article 19(1)(g) needed some express recognition to ensure protection from sexual harassment in a workplace. Justice Bhat argued that, the court also relied on international conventions etc to provide the impetus required. The reasoning provided in Justice Bhat’s opinion on why a Vishaka like process cannot be followed is also not as coherent apart from the one reason that Union of India provided full co-operation unlike the current case. There is no requirement that for a right to be recognised and facilitated by the court, the Union of India or anyone agrees to it. The court has to satisfy itself that such right need not be recognised irrespective of government’s stand, within the set constitutional limitations.

In NALSA vs. Union of India, the court held that public awareness programs were required to tackle stigma against the transgender community, directed the Central and State governments to take several steps for the advancement of the transgender community including making provisions for legal recognition of “third gender” in all documents and directed the State to operate HIV-Sero Surveillance centers etc to address the severe heath issues faced by many in the community. The court’s reasoning in NALSA was of prime importance in the Navtej Johar judgement. The court also directed the Centre and State governments to take steps to treat trans people as Socially and Educationally Backward classes of Citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments. These were all new guidelines, prompting the state to act in a certain way.

For NALSA, Justice Bhat does not specifically say why it cannot be relied upon but goes on to state that these three cases cannot be relied on in the current case since a completely parallel regime has to be fashioned by the court.

Conclusion

While all the judges agreed that there is discrimination against queer people in the country, the rights were not granted for the Queer people to overcome the discrimination. However, Justice Bhat’s opinion gave no structured reasons to why the extent of placing obligation on state to recognise a right to civil union is a point at which the line has to be drawn. And Justice P.S. Narasimha’s opinion almost brought back the pre-RC Cooper jurisrpudence such as Gopalan and Kharak Singh where fundamental rights were construed as individual rights rather than a collective code that interacts internally. The implications of both of these opinions, mainly with respect to rights jurisprudence and the obligations placed on the state, will have to be studied and deconstructed in academic discourse so that they can be efficiently countered in times to come.

(The author is a researcher with the organisation)

[1] Paragraph 61

[2] Paragraph 69

Related:

Do all Indians have the right to a civil union? Understanding the Marriage Equality Judgement – Part II

How fundamental are our rights? An examination of the judgement in the Marriage Equality Case: SC

The post Uneven reason in denial of flow of rights: Part III on Marriage Equality Judgement appeared first on SabrangIndia.

The judgement also states that transgender persons have the right to marry under the Special Marriages Act (SMA). The majority opinion by Justices Ravindra Bhat, Hima Kohli and P.S. Narasimha differed with the minority opinion of Chief Justice of India (CJI) D.Y. Chandrachud and Justice S.K. Kaul, on the issue of validity of adoption regulations that restricted unmarried couples to adopt children.

This article is the second part of a series that will explain and analyse the judgement with respect to different ways in which the judges reached their conclusions, the jurisprudence they created and sidelined, and the consequences of this judgement.

You can read part I of the series here. This one dealt with the court’s decision over fundamental right to marry. This part will deal with what the Court has said on the Right to enter into a Union.

The following were the issues decided by the court:

1. Whether the Right to Marry is a Fundamental Right or not.
2. Whether there is a Fundamental right to enter a Civil Union or not.
3. Whether the SMA is unconstitutional for excluding non-heterosexual persons from its scope or not.
4. Whether non-heterosexual marriage can be read within the framework of SMA or not.
5. Whether Transgender Persons have a right to marry under the SMA or not.
6. Whether the adoption Regulations that restrict unmarried non-heterosexual couples in adopting children are valid or not. 

Right to Enter a Union

While the court ruled that there is a no fundamental right to Marry, it had varying opinions on the right to enter a union and the obligation on state’s part to recognise such union. The CJI opined that there is a right to enter into an abiding civil union that can be traced to Articles 19, 21 and 25 and that the state is under obligation to give such relationships the due recognition to give meaning to the rights, Justice S.K. Kaul agreed with CJI’s opinion. The majority-consisting of Justices Ravindra Bhat, Hima Kohli and P.S. Narasimha disagreed with this construction of the right to a civil union or an abiding cohabitational relationship conferring a legally enforceable status under Fundamental Rights. Apart from agreeing to the reasons noted in Justice Bhat’s opinion, P.S. Narasimha gives additional reasons in his opinion regarding why there cannot be a right to a civil union within the Fundamental Rights having the effect of the state recognising it.

First, I will present the CJI’s opinion which forms the minority opinion and then the majority opinion. This is because the majority opinion regarding Right to Civil Union was a response to the system of rights propounded by CJI in his opinion.

There is a Right to a Civil Union or an Abiding Cohabitational Relationship- CJI DY Chandrachud

CJI Chandrachud traces the right to enter into a union other than marriage-since he had denied the fundamental right to marriage-to Article 19, 21 and 25. Before doing so, he relies on American Philosopher Martha Nussbaum to describe what it means to be Human to emphasise on the importance of- relationships and official recognition to such relationships. He states that “the Constitution, through both positive and negative postulations, inter alia capacitates citizens in their quest to develop themselves.” He connects this Constitutional Aim or a common constitutional theme of development of citizens to Martha Nussbaum’s list of ten capabilities which are central requirements to live a quality life. Among those requirements, CJI emphasises- firstly on the capability of humans to emote love and other such feelings in their private space and secondly on the capability to be able to live with and toward other, and having such institutional arrangements or affiliations protected.

To put it simply, the Constitution, through its various provisions in Fundamental Rights and Directive Principles of State Policy, aims at the development of people and a quality life for them. This quality life, CJI states, includes the ability to form meaningful relationships and the ability to have those relationships recognised by the state.

Article 19 and Right to enter a Union

Article 19(1) (a) states as follows: All citizens shall have the right— (a) to freedom of speech and expression. CJI relied on the well-established jurisprudence that freedom of speech enshrined in Article 19(1) (a) also includes other forms of expression such as the manifestation of complex identities of persons through the expression of their sexual identity, choice of partner and the expression of sexual desire to a consenting party.

Article 19(1) (c) states that “all citizens shall have the right to form associations or unions or co-operative societies.” While holding that associations include the traditional coming together of people for a cause or such kind of associations, other forms of association are also protected under Article 19 (1) (c). To realise all forms of expression protected under Article 19(1)(a), CJI relied on a United States’ case Roberts vs. United States Jaycees which stated that freedom of association includes freedom to form intimate relationships. He observed that state recognition of the association is necessary for the free and unrestricted exercise of the freedom to form intimate associations and the state by not endorsing some form of relationships, encourages certain preferences over others. He states as follows:

“For the right to have real meaning, the State must recognise a bouquet of entitlements which flow from an abiding relationship of this kind. A failure to recognise such entitlements would result in systemic discrimination against queer couples. Unlike heterosexual couples who may choose to marry, queer couples are not conferred with the right to marry by statute. To remedy this, during the course of the hearing, the Solicitor General of India made a statement that a Committee chaired by the Cabinet Secretary will be constituted to set out the rights which will be available to queer couples in unions. The Committee shall set out the scope of the benefits which accrue to such couples.”

Another right that the CJI traces the right to a civil union to, is the Right to Settle in any part of India. Article 19(1)(e) guarantees that All Citizens shall have the right to reside and settle in any part of the territory of India. CJI read two definitions into the word ‘settle.’

One:  that an exercise of Article 19(1)(e) can be by building a life in any part of the country and reside there permanently with or without a partner-an exercise that is uniquely significant to queer, inter-caste and inter-faith couples) who migrate from their hometowns to other places in the country including cities. Another definition is that citizens may ‘settle down,’ meaning entering a relationship with another person. He also stated that settling down in any city encompasses entering a relationship with another person since building a life includes choosing their life partner. Therefore, he declared that Right to enter a Union is protected under Article 19 (1) (e).

In all the relevant rights guaranteed under Article 19, the CJI’s opinion not only traces the queer couples’ right to a union but also acknowledges that state recognition to these unions is necessary for the complete enjoyment of these rights by individuals.

Article 21 and Right to Enter a Union

CJI traced the right to enter a civil union to three facets of Article 21. Article 21 states that No Person shall be deprived of his life or personal liberty except according to procedure established by law. First, he observes and acknowledges the legitimacy of an atypical family i.e., a family that does not conform to the traditional notions of natal mother and father. He recognsied the right of atypical families to be different to the conventional ones and ruled that “Difference cannot be discriminated against simply because it exists. Articles 19 and 21 protect the rights of every citizen and not some citizens.”

Second, he ruled that the act of entering intimate relationships and choices made in such relationships are protected under Right to Privacy under Article 21, and that a right to intimacy exists emanating from right to privacy, autonomy, and dignity.

Third, the CJI read right to health, emphasizing mental health on which the Parliament too has enacted a legislation on, into Article 21- supporting the right of people to enter a civil union. He states that rights of Queer Persons to access mental healthcare is recognised by Section 18 of the Mental Healthcare Act, 2017-which stipulates that persons have access to mental healthcare without being discriminated on the basis of sex, gender, or sexual orientation. Reading Article 21 with Section 18 of the Mental Healthcare Act- CJI stated- would deem the natural consequence to be the one where queer people have the right to enter a lasting relationship with their partner and have the right not to be subjected to inhumane and cruel practices and procedures.

Article 25 and Right to Enter a Civil Union

Article 25(1) states as follows:

Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

CJI expanded the scope of freedom of conscience from just freedom to practice and profess a religion to a freedom and right to judge the moral quality of one’s actions in one’s life. The application of a sense of what is right and wrong and a decision on what they want to do and what they do not-individuals are entitled to decide for themselves in accordance with their conscience- he stated. This included whether they want to choose a partner and what kind of partner would they choose, he held.

By tracing the right to enter an abiding union to all these articles, CJI held that the right extends to queer relationships too. This was however different from a right to marriage which the CJI had denied in his judgement, along with the rest of the bench. CJI’s opinion on marriage, when read in combination with the opinion on right to an abiding civil union means that although there is no right to marriage to individuals since marriage is an institution accorded recognition by the state and therefore not as fundamental, there is a right to an abiding civil union which is fundamental to live a quality life and to exercise rights under Articles 19, 21 and 25.

By directing a committee to be set up to set out the scope of benefits that should accrue to Queer couples, the CJI’s opinion asks the state to act and recognise the relationships between Queer people.

Right to Relationship exists but no obligation on the state to take measures to recognise it- Justice Ravindra Bhat

While Justice Bhat and the CJI agreed on the point of there being no fundamental right to marry, they disagreed on whether the right to a relationship other than marriage-can be traced back to Article 19 and 25, and whether the state is under obligation to create conditions for the exercise of those rights.

Firstly, Justice Bhat characterises the right to union as propounded by the CJI, as Right to Relationship so as to differentiate between the two. Therefore, in this article too, Right to Relationship will be used when referring to Justice Bhat’s opinion and Right to Union will be used when referring to CJI’s opinion.

While Right to Relationship includes the right to choose a partner, cohabit and enjoy physical intimacy with them, to live the way they wish to, and other rights that flow from the right to privacy, autonomy and dignity, does not trace these rights to Articles 19 or 25. He merely places them within the wide ambit of Article 21 and argues that these rights being included in Article 21 is  natural consequence of Supreme Court’s judgements in Navtej Johar vs. Union of India(Decriminalization of Section 377), Justice K.S. Puttaswamy vs. Union of India[(2017) 10 SCC 1)] (Right to Privacy a Fundamental Right), Shafin Jahan vs. Asokan K.M [(2018) 16 SCC 368] (Right to Marry is within Right to Life under Article 21), Shakti Vahini vs. Union of India[(2018) 7 SCC 192] (Khap Panchayats cannot prevent a consenting couple from marrying).

Disagreement with the CJI over the flow of Rights from Articles 19 and 25, on positive obligations of the state

Justice Bhat disagreed on CJI’s point of there being a positive obligation on state to create an institutional scheme to give recognition to queer civil unions. He stated that Article 19(1) (a) does not oblige the state to enact a law or frame a regulation which enables the facilitation of that expression. He takes the example of Limited Liability Partnership (LLP) – a form of association to argue that if there was not a law on LLP, the court could not have validly created such a regime enabling the recognition or regulating such associations under Article 19(1) (c); or a demand for construction of a house by the state could not be made under Article 19(1) (e). Justice Bhat did not rule out court scrutiny or court’s power to direct the government altogether, but he opined that assertion of a right in the face of some threat by state action or despite state protection-becomes subject of state scrutiny. This means that if there is a particular order or law made by the government which discriminates against Queer Couples, then the court can interfere and direct the state to do something different, but this interference cannot flow from the rights under Article 19 or 25. In the absence of any law, the court cannot ask the state to create a new system and therefore, the positive obligation imposed by the CJI on the state was disagreed with.

Justice P.S. Narasimha disagreed with the CJI in his concurring opinion to Justice Bhat’s opinion by stating that there cannot be a right to civil union mirroring the right to marriage. He stated that when the benefits of marriage do not make marriage a fundamental right, the same benefits cannot render the right to an abiding cohabitational union fundamental. The interpretation of CJI under article 25 is also disagreed with, by Justice P.S. Narasimha. He states that if such interpretation is permissible, the textual enumeration of freedoms under Article 19 becomes redundant since these freedoms can be claimed to be actions on the basis of one’s own moral judgement. Regarding directing the state to recognise civil unions, he stated that by doing this, the doctrine of separation of powers is violated.

Conclusion

It is clear that the CJI proposed an institution that mirrors marriage in the form of right to enter an abiding civil union and the obligation of the state to recognise such relationship, while the majority disagreed with him on the obligation of state to recognise such relationship. CJI’s task of propounding the civil union concept after denying the fundamental right to marry, falters in front of the reasoning adopted by Justice P.S. Narasimha who stated-if benefits of marriage are not fundamental, how can an institution that mirrors marriage be fundamental? Justice P.S.Narasimha’s reasoning does not completely negate CJI’s reasoning but presents the contradictions of CJI’s opinion.

In the next part of this series, the rugged jurisprudence the majority tried to bring forth with its opposition to CJI’s concept of Civil Union will be explored.

(The author is a researcher with the organisation)

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Right to Same Sex Marriages is not a right that can be claimed: Union to SC

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I am not fully ‘woke’: Madras HC judge to start psychology sessions to understand same sex relationships

The post What the Supreme Court says on the Right to enter into a Civil Union appeared first on SabrangIndia.

The importance of this issue cannot be understated, as it touches upon fundamental rights, privileges, and obligations that are bestowed and protected by the law. The Supreme Court has meticulously heard arguments from petitioners and respondents for ten days, including the union government, the National Organization for Children’s Rights, NCPCR, and a group of Islamic scholars known as the Jamiat-Ulama-i-Hind.

Petitioners’ Demands

Eighteen couples have petitioned for the legal recognition of same-sex marriages. The petitioners involved in these cases have fervently campaigned for fundamental reforms to the legal landscape, seeking to establish a more inclusive and just society. Their pleas can be summarised as follows:

1. Recognition of Same-Sex Marriages: The petitioners contend that refusing same-sex unions legal recognition is discriminatory and violates the equality, privacy, and dignity rights of LGBTQIA+ people. They seek a judicial declaration that same-sex marriages should be treated on par with heterosexual marriages, granting equal legal rights and benefits.
2. Non-discrimination based on Gender and Sexual Identity: Laws and regulations, according to the petitioners, cannot discriminate against anyone based on their sexual orientation or gender identity. Any categorisation that privileges one group over another based on sexual orientation or gender identity is unlawful since it denies LGBTQIA+ people equal protection under the law.
3. Reinterpreting Current Laws: The petitioners ask the courts to construe current marriage laws in a way that these are inclusive and take the rights of the LGBTQIA+ community into account. Reinterpreting the law would ensure that same-sex unions are not prohibited purely because of their sexual orientation or gender identity.
4. Repealing or Amending Discriminatory Provisions: A number of petitioners want certain parts of the marriage laws that are discriminatory repealed or changed. The petitioners contend that gender-neutral wording should be used in place of these clauses to cover all couples, regardless of gender identification.
5. International Commitments to Human Rights and Constitutional Morality: The petitioners emphasize the importance of constitutional morality in creating effective laws. They also stress India’s responsibilities to international human rights and call for a match between national legislation and those standards.
6. Protecting “Chosen Families”: Some petitioners call for the legal recognition and protection of “chosen families” or “atypical families” beyond the conventional bounds of marriage, blood relationships, or adoption.
7. Comprehensive Safety and Legal Protections: A number of petitioners want complete legal safeguards for the LGBTQIA+ community, including measures to address the violence, discrimination, and harassment faced by them.
8. Positive State Responsibility to Affirm Rights: The petitioners stress that it is the state’s responsibility to acknowledge and defend the rights of LGBTQIA+ people.

Union government’s position

The Union government, headed by the right-wing Bharatiya Janata Party (BJP)  has vehemently opposed any constitutional declaration that would legalise same-sex marriages, arguing that it does not align with the Indian concept of marriage. The key arguments presented by the government in its counter-affidavit can be summarized as follows:

1. The Uniqueness of the Indian Family Unit: The government argues that a relationship between a biological man as a husband, a biological woman as a wife, and their offspring produced out of the union is the essence of marriage in India.
2. Heterosexuality and Statutory Recognition: According to the government, current marriage-related personal legislation and statutory enactments exclusively recognize heterosexual partnerships.
3. Issues with Current Laws: The government points out potential challenges in matters relating to adoption, divorce, maintenance, and inheritance if same-sex marriages were to be legally recognized.
4. Interest of the State in Heterosexual Marriages: According to the government, only recognizing heterosexual unions is consistent with past practice and essential to the survival and continuity of the State.
5. Fundamental Rights and Reasonable Classification: According to the government, Part III of the Constitution does not infringe any fundamental rights by refusing to recognize same-sex unions.
6. Privacy and the Right to Marry: The government acknowledges that marriage includes private persons and has an impact on their lives, but insists that it is more complex than a simple privacy concern.

Arguments made in Court

During the ten-day proceedings, the petitioners and respondents engaged in a robust exchange of arguments. The key arguments made during the hearings can be summarized as follows:

1. Fundamental Right to Marry: The petitioners argued that the LGBTQIA+ community has a fundamental right to marry, guaranteed under the Constitution.
2. Gender-Neutral Interpretation of SMA: The Special Marriage Act, 1954, with its gender-neutral language, was crucial in the hearings. Petitioners argued that this phrase does not impose any gender-based restrictions and should be interpreted as inclusive of same-sex couples.
3. Innate Characteristics and Equality: Advocates emphasized that laws must not discriminate based on innate characteristics, such as sexual orientation and gender identity.
4. Procreation and Marriage: The respondents argued that marriage’s primary purpose is procreation, and legalizing same-sex marriages would go against this traditional understanding.
5. Notice Period under SMA and Privacy Concerns: During the hearings, the notice period clause under the Special Marriage Act, 1954, was questioned by the petitioners for potentially violating personal privacy and autonomy.
6. Recognition of Same-Sex Marriages Abroad: The issue of recognizing same-sex marriages performed abroad under the Foreign Marriage Act, 1969, was raised during the hearings.
7. Parenting and Child Welfare: Concerns about child welfare were expressed, with respondents arguing that same-sex parents might not provide adequate care.
8. Parliament’s Role vs. Judiciary’s Role: The respondents contended that the issue of same-sex marriages should be left to the Parliament rather than the judiciary.

Key Issues for the court to consider

The court will take into account several key issues when rendering its decision, including whether members of the LGBTQIA+ community have a fundamental right to marry, and if so, whether the court can make a declaration to this effect.

Conclusion

In conclusion, the pending judgment on the legal recognition of same-sex marriages is a groundbreaking decision that holds significant implications for the rights and equality of the LGBTQIA+ community in India. The court’s ruling will not only shape the legal landscape surrounding marriage but will also reflect the nation’s commitment to inclusivity, dignity, and non-discrimination.

The fervent arguments presented by the petitioners underscore the fundamental right to marry and the need for gender-neutral interpretations of existing laws. The government’s opposition raises concerns about preserving the uniqueness of the traditional Indian family unit. As we await the Supreme Court’s decision, it is crucial to recognise the historic importance of this case and its potential to create a more inclusive and just society

Related:

Pew Research Centre: 53% of Adults in India Support Legalisation of Same-Sex Marriages

Equal marriage rights: A deep dive into the resistance, showcasing those resisting non-discrimination

Queer and Proud: The last legal challenge to a law that criminalises homosexuality

Right to Same Sex Marriages is not a right that can be claimed: Union to SC

Same-sex marriage an assertion of love, marriage & inclusivity

Decoding Discrimination Against Same-Sex Couples

The post In the face of conservative opposition, India’s Supreme Court will decide on petitions on Same-Sex Marriage appeared first on SabrangIndia.

The South Asian lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQIA+) population has looked to the Himalayan nation as a beacon of hope for their rights. In 2007, Nepal became the first nation in South Asia to formally recognize the third gender. Since then, the rights of gender and sexual minorities have gradually been realised and improved.

In a historic step, Nepal has become the first nation in South Asia to legalise same-sex unions, joining the tiny but increasing group of countries in the Asia-Pacific that have acknowledged this basic human right. The Supreme Court of Nepal issued a historic interim judgement on Friday ordering the Nepali government to formally recognise same-sex marriage, marking a significant step towards inclusivity and equality. This order by Justice Til Prasad Shrestha emphasises the necessity of significant changes to the current National Civil (Code) Act of 2017 (2074) provisions. According to the Family Law, marriage is defined as a relationship between “a man and a woman accepting each other as the husband and wife”. Adhip Pokharel, a Nepali national, and Tobias Volz, a German national, petitioned for this historic change. When Volz applied for a non-tourist visa to live in Nepal as Adhip Pokharel’s spouse in 2022, the couple—who had wed in Germany back in 2018—met with substantial challenges. The application was turned down by the authorities, who cited Nepal’s lack of legislative protections for same-sex unions as their justification. The pair was determined to stop this discriminatory practise, so they brought their case to the Supreme Court, which ultimately resulted in the issuing of an order granting the German citizen a non-tourist visa.

The legal journey to Same-sex marriages in Nepal

The lengthy and complex process that Nepal’s courts went through to recognise and legalise same-sex marriage is examined in this essay, along with the possible implications for an upcoming Indian Supreme Court decision.

On June 28 2023, the Supreme Court of Nepal made a historic decision that opened the door for marriage equality in the nation, making Nepal the first South Asian to legalize same-sex marriages and the fourth in the Asia-Pacific to do so. Justice Til Prasad Shrestha ordered the government to immediately begin registering same-sex marriages while working on legislation to modify the current law, despite the civil code currently defining marriage as being between a man and a woman

The Supreme Court of Nepal’s interim judgement calls for the creation of a “transitional mechanism” for the registering of weddings for the nation’s gender and sexual minorities. In addition, the directive instructs the PMCMN and the office of the Prime Minister to establish a “separate register of marriages” specifically for heterosexual and homosexual couples.

The interim order is based on Article 18(1) (right to equality) of Nepal’s 2015 Constitution and Section 69(1) (freedom of marriage) of The National Civil (Code) Act of 2017 which promote the recognition of marriage rights for people based on their gender identification and sexual orientation. It requests that the regulations pertaining to marriage and the registration of

Although there have been occasions when implementation has lagged, Nepal’s Supreme Court has won praise for its decisions in favour of LGBTQIA+ rights.

LGBTQIA+ individuals in Nepal have historically experienced significant discrimination and stigma. From their families, neighbourhoods, and places of employment, they frequently experienced hatred, rejection, and isolation. LGBTQIA+ people experienced verbal, physical, and emotional abuse, which had a serious negative impact on their mental and emotional health.

An important LGBTQIA+ rights group called the Blue Diamond Society (BDS) was established in Nepal in 2001. It was essential in spreading knowledge about LGBTQIA+ issues, offering support services, promoting legislative changes, and questioning social conventions. To provide a safe environment for LGBTQIA+ people, BDS ran community centres, outreach programmes, and pride marches.

Protests and demonstrations were organised by LGBTQIA+ activists in Nepal to demand their rights and oppose the country’s discriminatory laws and social mores. Although these activists encountered a lot of opposition and backlash, their work was crucial in spreading knowledge and rallying support for LGBTQIA+ rights.

The LGBTQIA+ population in Nepal was disproportionately impacted by the HIV/AIDS epidemic. Many LGBTQIA+ individuals were hesitant to seek healthcare treatments and support because of social stigma and discrimination. In order to address the confluence of LGBTQIA+ rights and public health, organisations like the Blue Diamond Society campaigned to give HIV/AIDS preventive information, testing, and support to LGBTQIA+ people.

Sunil Babu Pant Case- Catalyst for Change

A crucial court case, for LGBTQIA+ rights in Nepal was Sunil Babu Pant v. Government of Nepal[1]. The case was brought in 2007 by LGBTQIA+ activist and Blue Diamond Society founder Sunil Babu Pant, who questioned the validity of Nepal’s laws that make same-sex partnerships illegal.

The legal code of Nepal at the time, Section 377, used to criminalise “unnatural sexual intercourse” and target coerced same-sex partnerships. According to Sunil Babu Pant, this clause went against the Interim Constitution of Nepal’s guarantees of equality, non-discrimination, and privacy.

The Sunil Babu Pant v. Government of Nepal case was a significant advance for LGBTQIA+ rights. The LGBTQIA+ community was represented by the petitioners, who argued against Nepal’s discrimination against them and failure to recognise their preferred genders. The issuance of birth certificates, citizenship certificates, passports, voter identity cards that recognised their preferred genders, and the decriminalisation of consenting same-sex sexual activity were among the legal recognition and protections they sought.

The court ruled that under the different articles of the Constitution and the international agreements that Nepal has ratified, LGBTQIA+ people are entitled to equal protection and rights.  According to the court, a person’s gender identity and sexual orientation are protected by their right to privacy and cannot be accessed without their consent. LGBTQIA+ people’s privacy was violated by treating their sexual behaviour as unnatural.  A committee was established by the court with the mission of researching and defending the rights of minority groups, including the LGBTQIA+ community. The committee was tasked with advising the state on the adoption of suitable legal legislation to safeguard LGBTQIA+ rights.  The court ordered the state to implement appropriate legal provisions to protect the rights in accordance with the committee’s recommendations. This verdict suggested the need for extensive legal changes to eliminate discrimination and give LGBTQIA+ people legal protection.

The Sunil Babu Pant case established crucial precedents for LGBTQIA+ rights in Nepal by reaffirming their legal equality, right to privacy, and dignity. Additionally, it emphasised the state’s responsibility to end prejudice and led to the formation of a committee to direct legislative improvements. These conclusions were important advancements in Nepal’s legal protection and acknowledgment of LGBTQIA+ rights. This verdict suggested the need for extensive legal changes to eliminate discrimination and give LGBTQIA+ people legal protection.

Early in 2015, a report from a government-appointed commission was released, effectively endorsing the legalisation of same-sex unions. However, neither had the same impact as the Supreme Court’s ruling establishing a third gender category. The third option was added to voter records by the Election Commission in 2010, and immigration papers quickly followed suit. Nepal was the first nation in the world to include a third gender in its federal census in 2011. The government also began issuing passports in 2015 that recognised three genders. In the same year, Nepal’s constitution was amended to specifically protect LGBT persons, making it the tenth nation in the world to do so.

Nepal’s progressive Constitution

On September 16, 2015, Nepal’s Constituent Assembly approved a ground-breaking new constitution following a protracted process of review and discussion. Having lost its monarchy in 2008, this was Nepal’s first constitution as a federal republic. Notably, the new constitution of Nepal is the first in Asia to specifically recognise the human rights of LGBTQ individuals.

Numerous sections of the constitution guarantee safeguards and rights for LGBT people. Article 12 gives people the freedom to indicate either their preferred gender identity—male, female, or other—on their citizenship documentation. The state and the judiciary are expressly forbidden from discriminating against gender and sexual minorities when enforcing the law under Article 18. Additionally, it enables the government to create specific legal provisions that develop, protect, and defend the rights of sexual and gender minorities as well as other oppressed and marginalised groups.

In order to encourage inclusiveness and representation, Article 42 also acknowledges gender and sexual minorities as a group with the right to participate in governmental processes and public services.

The Supreme Court of Nepal’s ground-breaking decision from December 2007 helped pave the way for this momentous development in Nepal’s constitution. The court’s ruling prepared the way for the inclusion of gender and sexual minorities’ rights in the nation’s constitution by laying the foundation for their recognition and protection.

Nepal’s constitution demonstrates a progressive position by specifically recognising the human rights of LGBT people and marks a significant turning point in the country’s advancement of equality and non-discrimination.

The court in the Sunil Babu Pant judgement also observed that the right to marriage is an “inherent right” of an adult based on free consent and will. However, it appears that the government’s legislative ineptitude in carrying out these court orders continues. In fact, there are some instances where the government has shown a reluctance to recognise the equal rights of the gender and sexual minorities, such as when it maintains a strictly gender-binary definition of marriage under Sections 67 (marriage deemed to be concluded) and 68 (marriage to be inviolable social bound).

The Supreme Court of Nepal has recently made decisions based on the principle of Stare decisis, citing other decisions it has made regarding LGBTQIA+ rights. The court strengthened the legal recognition of same-sex marriages and established a progressive trajectory in defending the rights of sexual minorities by being consistent and expanding on prior precedents.

Impact on Neighbouring countries and Global precedents

The Penal Code (Amendment) Bill, 2023, which aims to repeal legislation criminalising intimate conduct between consenting adults, was recently dismissed by the Supreme Court of Sri Lanka. The court found that the proposed legislation would guarantee everyone equal protection under the law regardless of sexual orientation, strengthen fundamental rights, and enable people to live with dignity. Recognising the right to privacy and liberty, the court emphasised that it is not the function of the government to regulate adult-to-adult private consenting sexual interactions.

This advancement in Sri Lanka is consistent with the historic decision rendered on March 22 by the Supreme Court of Nepal. The Supreme Court of Nepal recognised the equality of marriage and ordered the Ministry of Law and Justice to draught an equal marriage law or change current legislation to reflect this. Since the court’s ruling in Sunil Babu Pant v. Government of Nepal in 2007, which recognised the third gender legally and upheld the right to marriage as an inherent right based on free consent and will, non-heterosexual weddings have been accepted in Nepal.

The region’s neighbouring nations are significantly impacted by Nepal’s progressive position on LGBTQIA+ rights. The Supreme Court of India, a neighbouring country, decriminalised homosexuality in 2018 and is currently taking requests for non-heterosexual couples to be treated equally in marriage. The ruling in Nepal establishes a precedent and motivates comparable debates and legal issues in India.

The legalisation of gay marriage in Nepal also demonstrates the nation’s leadership in furthering the rights of South Asian gender and sexual minorities. The steadfast dedication of Nepal’s Supreme Court to equality and the affirmation of fundamental rights serves as a model for other nations in the region.

Conclusion

The legal environment is changing, and it is more crucial than ever to recognise LGBTQIA+ people’s rights. The courts’ emphasis on respect, confidentiality, and equal legal protection is consistent with universally accepted human rights tenets. A rising understanding that consenting private conduct between adults should not be criminalised can be seen in Nepal’s ruling and Sri Lanka’s dismissal of challenges to the repeal of discriminatory laws.

In conclusion, tremendous progress has been made in recognising and defending the rights of gender and sexual minorities in South Asia as seen by Nepal’s ground-breaking decision on marriage equality and Sri Lanka’s rejection of objections to the repeal of discriminatory laws. These developments may influence legal debates and reforms in neighbouring nations, promoting a more welcoming and egalitarian society for all.

LGBTQIA+ activists and advocacy groups in India find inspiration and a role model in Nepal’s legalisation of same-sex unions. The courts would be encouraged to fight for the same rights and official acceptance of same-sex unions in India. Legal advances in one nation can have an impact on judicial rulings and legal debates in neighbouring nations. Nepal’s legalisation of same-sex unions may add to the increasing number of worldwide legal precedents and justifications for marital equality. These precedents could be mentioned in Indian courts while a petition for same-sex unions is under consideration. When same-sex marriage laws are successfully implemented in Nepal, politicians in India may consider making similar changes. The Indian government may come under pressure as a result to deal with LGBTQIA+ rights problems more aggressively and take steps to legalise same-sex weddings or increase the legal status of same-sex partnerships.

(This article has been researched by Hasi Jain, an intern with the organisation.)

same-sex unions[1] Sunil Babu Pant v. Nepal Government, Writ No. 914 of the year 2064 BS (2007 AD)

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The fact that Indians while preaching diversity and equality, often forget that people who have different sexual orientations, that is the people of the LGBTQ+ community also deserve the same rights as the heterosexual people of this country.

When section 377 was decriminalised[2], it was a watershed movement for the country, a hope for a better future where the privileges that the heterosexual community enjoys are equal and same as the rights that the LGBTQ+ community deserves.

However, there has been no further action taken to strengthen the rights of the community since 2018, even after the unabated discrimination faced by the community. Five years down the line and India still stands at the same position with respect to LGBTQ+ rights, even after recognizing them as a community that needs equality.

The United Nations’ Universal Declaration of Human Rights states,

“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family[3].”

Then why is there an issue when it comes to same sex couples?

Adoption rights in India

In India, there are two main legislations that govern adoption, the Hindu Adoption and Maintenance Act, 1956[4] (herein after referred to as HAMA) and The Juvenile Justice (Care and Protection of Children) Act, 2000[5] (herein after referred to as JJ Act)

With accordance to HAMA,

Every man who is a Hindu (by faith, including Buddhist, Jain, or Sikh) who is of sound mind, not underage, and is qualified to adopt a son or a daughter. However, if such a man is still married at the time of the adoption, he can only do so with his wife’s permission (unless the court has pronounced her incapable of giving her consent).

Any female who is a Hindu (including Buddhist, Jain, or Sikh by religion) has the right to adopt a son or daughter if she is not married, or if she is married but her husband is deceased, their marriage has been dissolved, or her husband has been found to be legally incompetent by a court. This also limits the adoption rights of women, somewhat.

HAMA, while allowing single parents to adopt, but does not leave space for same sex adoption.

If a couple is adopting under HAMA act, they need to be-

1. Of different genders
2. Hindu’s
3. Of sound mind

Under the JJ Act,

• A couple or a single parent may adopt an orphan, an abandoned kid, or a child who has been handed over.
• The potential adoptive parents must be mentally stable, physically fit, and fully prepared to adopt the child and to raise the child well.
• For married couples, both spouses’ consent is necessary.
• Adopting a girl kid is not permitted for unmarried men.
• No couple may receive a child unless they have been married for at least two years in a healthy partnership.
• The age gap between the adoptive child and the parents shouldn’t be any smaller than 25 years.

Here, in order for a couple to adopt it is necessary for them to have a “healthy marriage” for a period of two years. However, since same-sex marriages are not legally recognized in India, therefore even under the JJ act it is not permissible for same sex couples to adopt a child.

The Guardians and Wards Act[6] too is dominated d by the idea of a heterosexual couple.

Since all the legislations that govern adoption and surrogacy see marriage as a prerequisite for adoption in the case of couples, it is impossible for a homosexual couple to adopt. Moreover, the legislations are not gender neutral. Building a family by marriage and having kids through adoption is a basic right that should be available to all humans and should not be categorized as a heterosexual privilege.

Despite recognising the LGBTQ+ community formally, India is still holding on to these discriminatory laws, and restricting the people from the community to have a family. This is not only a contravention of Article 14 and 15, but also of Article 19 of the Indian Constitution.

Jurists and LBGTQ+ Rights-

Lon Fuller, a legal philosopher and jurist, argued that law must conform to or with morality. He introduced a concept of “inner morality of law” which means that for a legal system to be legitimate and effective, it must conform to some essential moral principles. The laws must reflect and promote basic moral principles and values accepted by society, such as fairness, justice and human dignity.[7]

Laws are shaped by the society we are living in, but in the end laws need to serve their purpose, which is fairness and justice. Laws must conform with the basic moral standards, in order to be considered legitimate. Living in a society, where the laws are not just or fair for a particular group of people, makes the system itself, basically ineffective and illegitimate.

While living in a democracy, it is especially important to keep in mind that law is dynamic, law must conform with the basic moral standards, law is a measure of equality in society and that law is a tool that can be used to uplift all communities in the society that have faced discrimination in the past.

Ronald Dworkin[8], another legal philosopher and jurist, places emphasis on the ethical foundations of rights.  According to Dworkin, rights have a deeper moral foundation than simple legal or social structures. Dworkin contends that because they are moral beings, people have certain rights. The values of justice, fairness, and respect for human dignity serve as the foundation for these rights.

They represent the inherent worth and liberty of people while also providing them with defence against unwarranted intrusion or injury. According to Dworkin, people have inherent rights because of their moral standing rather than being awarded or bestowed by the government or society. They can neither be removed nor overruled by simple law nor the desires of the majority because they exist regardless of legal acknowledgment.

Dworkin’s idea of “rights as trumps” highlights how crucial individual rights are when it comes to determining legal decisions. Rights, in Dworkin’s view, have a distinctive position and act as trumps that take precedence over other factors like utilitarian or majority interests.

Dworkin’s viewpoint argues that the rights of anyone, including same-sex couples, should be recognised and protected when applying this idea to same-sex adoption.

Dworkin would probably contend that same-sex couples should be allowed to adopt in the context of same-sex adoption. He would argue that it is against their fundamental rights to equality and liberty to prevent same-sex couples from adopting merely based on their sexual orientation. Dworkin’s paradigm would give individual rights and the best interests of the child top priority when determining whether same-sex adoption is legal and permissible.

Countries that have legalised same-sex adoption-

Fifty-five countries, have legalized same sex adoption, 128 countries are in the process of doing so, 44 countries consider same sex adoption illegal[9].

In the celebrated judgement of the US supreme court, Obergefell v. Hodges[10], a case which has been repeated citied by the Indian Courts in various judgments, like Navtej Singh Johar v. the Union Of India[11], Arunkumar and Another Versus Inspector General of Registration[12], Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others[13] and Shayara Bano v. Union of India [14]

The case has not only been an important one, to reach the most groundbreaking decisions of India but has also been used as a precedent. This was the case that legalized same-sex marriages and same-sex adoption in the US.

However, so far, while using it a precedents on many aspects of universal rights law, where Indian courts have spoken about dignity, privacy, and right to marry whoever you want, Courts have not legalised same-sex adoption or marriage up yet.

Indian constitution and same-sex adoption

Everyone has the right to equal treatment under the law, as stated in Article 14. It allows for distinctions to be made between various groups of individuals, but it also demands that these distinctions be founded on observable differences and have a logical relationship to the objective being pursued. There is no discernible difference between people who indulge in “carnal intercourse outside the order of nature” and those who engage in “natural” intercourse, according to the Supreme Court in the case of Navtej Singh Johar v. UOI.

According to the ruling in Navtej Singh Johar v. Union of India, the LGBTQ+ group has access to all fundamental and constitutional rights. When precedents explicitly state that the LGBTQ+ community is entitled to the same fundamental rights as everyone else, the law cannot prohibit certain persons from adopting because they share the same gender. This concludes to say that, If the constitution upholds equality, then everyone must have the option of getting married, regardless of whether or not other people of the same sex desire to do so.

The right to marry whoever you want and form a family is an inherent right of a human being, and this right is enshrined in Article 21 of the constitution of India. The court noted that society was through a substantial period of change in Shafin Jahan v. Asokan K.M. and ors. [15] Marriage-related intimacy is protected by an unbreakable core of seclusion, and even religious matters would have little effect on it.

It has been also determined that the freedom to marry anyone one chooses and the freedom to start a family are essentially protected under Article 21 of the Indian Constitution. In a Bombay High court Judgement, Payal Sharinee v. Vinayak Pathak[16] the court held that adopting a child is an integral component of Right to Life under article 21 of the Constitution of India. The right to life not only to safeguard the rights of children who need the care and protection but also of the parents who desire children and want to form a family.

It would be discrimination against the LGBTQ+ community to deny them this right since it has been established that there is no intelligible differentia, which would be a violation of Article 15 of the Indian Constitution.

Imperative for legal change regarding same-sex adoption in India

Laws governing same-sex adoption are increasingly being called for to be changed as a result of changing social standards and a growing knowledge of the diversity of families. The idea of equality is at the core of the push for new laws. All citizens must be treated equally in a democratic society, regardless of their sexual orientation. The Indian Constitution’s anti-discrimination tenets are violated when same-sex couples are denied the opportunity to adopt merely because of their sexual orientation. Accepting same-sex couples’ ability to adopt will respect equality principles by guaranteeing that everyone has an equal chance to start a family and create a loving home for children.

The wellbeing and best interests of the child come first in any adoption situation. Children raised by same-sex couples do equally as well as those reared by heterosexual couples, according to a number of studies. For instance, the American Psychological Association has emphasised that parental behaviour and family relationships—rather than the parents’ sexual preferences—have a greater impact on children’s wellbeing. By limiting the number of prospective loving and caring homes and disregarding the wellbeing of numerous children who may benefit from adoption, the right to adopt is denied to same-sex couples.

When it comes to the numbers of children in India who require homes, there is a serious problem. Many youngsters spend a considerable amount of their childhood in institutional care as a result of the lengthy and complicated adoption procedure. By permitting same-sex couples to adopt, the pool of prospective adoptive parents would grow, boosting the likelihood that children waiting for adoption will find suitable and devoted homes. This larger pool of potential parents can lessen the strain on the already overworked adoption system and improve results for kids who need them.

The social environment is dynamic and ever-changing. The acceptance of same-sex adoption fits in with the global movement to acknowledge and respect various family forms. The legalisation of same-sex adoption in numerous places, including several Western ones, demonstrates how important inclusion and equality are. India should endeavour to lead social progress and show its commitment to human rights by accepting such legal reforms since it is a fast expanding country.

In India, same-sex couples are marginalised and stigmatised as a result of the current legal prohibitions on same-sex adoption. Denying people the ability to adopt keeps a feeling of inequity and exclusion alive, which is bad for their mental health. Accepting same-sex adoption will lessen these detrimental psychological effects by reaffirming the value and dignity of every person, regardless of sexual orientation.

In conclusion, there is an urgent need for legal modification in India with relation to same-sex adoption. The ideals of equality, child welfare, and societal advancement can be honoured by amending adoption rules to accommodate same-sex couples. Such legal changes would increase adoption opportunities, safeguard children’s safety, and advance a more open and equitable society. It is essential that India accepts these changes and cultivates a culture that values and honours the variety of family configurations and upholds the interests of its young people.

(The writer is a legal intern with cjp.org.in)

[1] https://www.oed.com/

[2] AIR 2018 SC 4321

[3] Universal Declaration of Human Rights (adopted on 10th December 1948) Article 16(1)

[4] https://www.indiacode.nic.in/bitstream/123456789/1638/1/AA1956____78.pdf

[5] https://www.indiacode.nic.in/repealed-act/repealed_act_documents/A2000-56.pdf

[6] https://www.indiacode.nic.in/handle/123456789/2318?locale=en

[7] Fuller, Lon L. “Positivism and Fidelity to Law: A Reply to Professor Hart.” Harvard Law Review 71, no. 4 (1958): 630–72. https://doi.org/10.2307/1338226.

[8] Dworkin, R. (1977) Taking Rights Seriously. Harvard University Press, Cambridge, MA

[9] https://www.equaldex.com/issue/adoption

[10] Hodges – 135 S. Ct. 2584 (2015)

[11] Navtej Singh Johar and Others Versus Union of India, Thr. Secretary Ministry of Law and Justice [2018] 4 MLJ (CRL) 306

[12] Arunkumar and Another Versus Inspector General of Registration, No. 100, Santhome High Road, Chennai – 600 028 and Others [2019] 4 MLJ 503

[13] Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others [2017] 6 MLJ 267

[14] Shayara Bano Versus Union of India and Others [2017] 6 MLJ 378

[15] Shafin Jahan v. Asokan K.M. and ors. (2018) 16 SCC 368, AIR 2018 SC 1933

[16] Payal Sharinee v. Vinayak Pathak 2010 (1)BomCR 434

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The post Why the case for same-sex adoptions is both moral and legal appeared first on SabrangIndia.

According to the Pew Research Centre survey, 53% of adult Indians are in favour of legalizing same-sex marriage. According to the survey’s graph, a considerable 28% of respondents “strongly supported” legalizing same-sex weddings, while 25% “supported it somewhat,” bringing the overall number of people in favour of legalizing same-sex marriages in the country to 53%.  On the other hand, 13% of Indian respondents indicated they were “somewhat opposed” and 31% said they were “strongly opposed” to legalizing same-sex marriage or enacting any policy to that effect, bringing the overall unfavourable reaction to almost 43%. Approximately 4% of respondents did not respond to the question.

Given that a significant and a majority section of Indians support making same-sex marriages legal, the survey results for India may be a boost for same-sex couples who recently argued for equal marital rights in the Supreme Court of India. The case was heard by a constitutional bench of the Supreme Court, headed by the CJI D. Y. Chandrachud, in the month of April, and the judgment in the case had been reserved.  Notably, the Union government had vehemently argued in opposition to providing marital rights to any couple other than the heterosexual couples, claiming that doing so violates Indian culture and the heteronormative framework that governs sexual relations. It is further essential to note, homosexuality has been decriminalized in India since 2018, and yet marriage between two consenting homosexual adults has not been legally recognised.

The study results for India further challenges the Bar Council of India’s (BCI) claim that “more than 99.9% of people in the country are opposed to the idea of same-sex marriage.” The BCI, an agency in line with the government’s view, had overstepped its ambit while appealing to the top court to desist from hearing the pleas seeking legalisation of same-sex marriage, terming it “highly inappropriate”. It had rather said the issue of marriage equality between heterosexual and homosexual couples is left to the legislative process. The BCI had stated that the data it released were based on its own survey, however, it never released a survey report that details the methodology, sample size, and other data points. The said resolution of the BCI, departed from its responsibility to promote law reform by opposing a judicial review of marriage laws, was criticized by many groups and individuals.

How queer friendly are other countries?

• According to the survey findings, in terms of global areas, people in Western Europe rose as firm supporters of same-sex marriage, with at least eight in ten respondents supporting it in Sweden (92%), the Netherlands (89%), Spain (87%), France (82%), and Germany (80%). Notably, same-sex weddings are permitted in each of these countries. In Poland and Hungary, however, only 41% of adults favoured the same-sex marriages.
• In North America, approximately eight out of 10 Canadians (79%) support same-sex marriage, as do 63% of Americans and 63% of Mexicans. Essentially, legal marital rights have been extended to the same sex couples in all these three nations.
• In South America, marriage between homosexual couples are supported by 67% of Argentinians and 52% of Brazilians. Both countries have legalized same-sex marriage.
• Over three-quarters of respondents in Australia (75%) and Japan (74%), respectively, support legal same-sex marriage in Asia-Pacific. While same-sex marriage is permitted in Australia, it is not permitted in Japan.
• Same-sex marriage is illegal in South Korea, and the issue is making headlines. In South Korea, 40% support legal same-sex marriage, while 59% oppose it. Same-sex marriage is strongly condemned by Indonesians. Only 5% of Indonesians favour same-sex marriage.
• The acceptance of same-sex marriage is the lowest in Nigeria, which a mere 2% of their population backing it.

Factors affecting views on same-sex marriage:

The said survey examined and recorded sentiments regarding a range of demographic variables, including age, gender, political ideology, and whether respondents believe religion to be essential in their life.

Age: The research also discovered that in 12 of the countries that were surveyed, those under 40 are more inclined than senior people to accept homosexual marriage.

Gender: In 14 of the surveyed countries, women were more likely than men to say they support allowing gays and lesbians to marry legally.

Religion: In general, countries where a higher percentage of respondents said religion was important to them, showed lower acceptance of legalising same-sex marriage. Similarly, people who are not affiliated with a religion are much more likely to say they support same-sex marriage.

Political ideology: Views on same-sex marriage are related to political ideology in 16 of the 18 countries. In these countries, those on the ideological left are significantly more likely than those on the right to favour allowing gays and lesbians to marry legally.

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