Recently, the Supreme Court started hearing a number of petitions seeking to legal sanction for same-sex marriage. With same sex couples and LGBTQ+ activists making a solid argument in their favour — claiming they are not just devoid of the right to equality enlisted in Article 14 of the Constitution but also Article 21, a fundamental right guarantees the right to live a dignified life to every Indian citizen — and the central government, vehemently opposing same-sex marriages, saying it is a “mere urban elitist views for the purpose of social acceptance” — the debate is turning out to be a lively one.
However, these are early stages of a debate, as arguments yet to be made by Centre and others opposing it. A question, which grips the mind is that — how would disputes arising from same-sex marriages be legally addressed? For example, if ‘husband’ and ‘wife’ is replaced by ‘spouse’, and ‘man’ and ‘woman’ substituted by ‘person’ — how would the law deal with these marriages in matters of maintenance, adoption, registration of marriages by state governments etc. How would the law recognise who is a man and who is a woman?
According to the Centre, the framers of the Constitution have specifically provided for a separate entry in the Concurrent List which is a part of the Seventh Schedule of the Constitution conferring a constitutional function of legislating with respect to institution of “marriage”. “The requisite conditions for a valid marriage, regulations of such institutions like making provisions for divorce, alimony etc. The Centre said every component of Entry V above is intrinsically interrelated and any change in any one will necessarily have an inevitable cascading effect on others and it may also have unforeseen consequential impacts on other statutes.
Also, a post same-sex marriage backlash is expected — reaction by religious leaders, possibility of heightened daily risk of discrimination faced by many sex couples, discrimination at work places, access to insurance etc. Therefore, the Supreme Court would have to walk on a tightrope, looking at both present and future scenarios, to ensure same-sex couples are not subjected to any discrimination and their social acceptance becomes a reality and they get equal dignity in the eyes of the law.
Voices in favour of same-sex marriages claim that marriage is a policy matter and any social policy is liable to judicial interference if rights are violated. The Constitution prohibits the state from discriminating on the basis of sex and the Supreme Court in Navtej Singh Johar (2018) interpreted “sex” to include “sexual orientation”. But, state governments are not a party to the case, how would the apex court issue direction to the government in the context of legally recognising same-sex marriages. There are many unanswered questions so far, hopefully the picture will be clear when the apex court resumes hearing next week.
