Supreme Court to hear pleas on validation of same-sex marriages: What’s the debate?

A five-judge Supreme Court bench will begin hearing a batch of petitions regarding the legalisation of same-sex marriages in India from Tuesday.

This comes after at least 15 petitions on the matter were referred to a larger bench for an authoritative decision last month by a CJI-led bench, who called it a “very seminal issue”.

The bench, consisting of Chief Justice DY Chandrachud and justices S K Kaul, S Ravindra Bhat, PS Narasimha, and Hima Kohli will commence the hearing, two days after the Centre termed the petitions as merely reflecting “urban elitist views” and submitted a fresh application Sunday, questioning their maintainability.

The debate:

Following the decriminalisation of Section 377 of the IPC in 2018 by the Supreme Court, the act which criminalised consensual sex done “against the order of nature”, which it considered sexual acts between individuals of the same gender, there has been a greater demand for legalising same-sex marriages in a bid to reduce the taboo and discrimination against the LGBTQIA+ community as well as a long term effort to normalise homosexuality within the society.

The arguments in favour of legalising same-sex marriages:

The Delhi Commission For Protection of Child Rights (DCPCR) supported the petition saying that same-sex family units are “normal” and that the government should intervene in taking steps to encourage such family units. “Multiple studies have argued that same-sex couples can be good parents…there are over 50 countries that allow same-sex couples to legally adopt children,” the child rights body argued.

Through the pleas, the petitioners are seeking wider constitutional entitlements based on the right to life and personal liberty, the right to dignity, and other related rights.

Last week, the Indian Psychiatric Society (IPS) came in support of the same-sex family units arguing it would promote their inclusion in society. The medical body’s stance that homosexuality is not an illness – had played a key role in the 2018 judgment that decriminalised homosexuality.

“…they are variants of normal sexuality, not deviant, and certainly not an illness…” the IPS said. LGBTQI+ spectrum should enjoy “all civil rights like education, employment, housing, income, government or military service, access to health care, property rights, marriage, adoption and survivorship benefits to name a few….any form of discrimination on these rights leads to mental health issues,” it added.

On the contention that children of same-sex couples may face stigma, the IPS said that while it is imperative that LGBTQI+ couples bring up their children in a gender-neutral environment, the greater onus lies on the family, community, school and society to be sensitised to protect any child and ensure its development.

The arguments against legalising same-sex marriages:

Meanwhile, the central government has repeatedly opposed the idea, contending it will cause a “complete havoc” with the equilibrium of personal laws and widely recognised societal values and termed it as merely reflecting “urban elitist views”. Centre argued the petitioners cannot claim same-sex marriages as a fundamental right and claimed “Marriage, as an institution in law, has many statutory and other consequences under various legislative enactments. Therefore, any formal recognition of such a human relationship cannot be regarded as just a privacy issue between two adults.”

Organisations like the Jamiat Ulama-i Hind and Rashtriya Swayamsevak Sangh (RSS) have opposed the validity of same-sex marriage, claiming it’s a threat to the“family ecosystem”. “…the aim of marriage among Hindus is not merely physical pleasure or procreation but spiritual advancement. It is one of the 16 ‘sanskars’ in Hindus, news agency PTI reported quoting the Jamiat. While RSS leader Dattatreya Hosabale agreeing with the Centre said, “…marriage is not a contract but an institution, not an instrument for enjoyment, and people of same sex cannot marry for their personal interests.” He added that “individuals from different genders marry for the welfare of society not fulfilment of personal or physical sexual enjoyment.”