Hearing on Same-Sex Marriages in Supreme Court

The Supreme Court has constituted a five judge Constitutional Bench headed by CJI Justice D.Y. Chandrachud to consider the grant of legal validity to the same-sex marriages in India under the Special Marriage Act.

On 24th August, 2017, the Supreme Court in case of Justice K.S. Puttaswamy (retd.) vs Union of India declared that Right to Privacy is a Fundamental Right mostly under Article 21 and as a part of Freedom guaranteed by Part III of the Constitution.

On 24th August, 2017, the Supreme Court in case of Justice K.S. Puttaswamy (retd.) vs Union of India declared that Right to Privacy is a Fundamental Right mostly under Article 21 and as a part of Freedom guaranteed by Part III of the Constitution.

A five-judge bench of the Supreme Court on 27th September, 2018 in Joseph shine v. Union of India Case struck down 160 years old law regarding ADULTRY, the Section 497 of IPC calling it unconstitutional. Now Adultery is no longer a crime in India and law is gender neutral.

The Right to Privacy as a Fundamental Right is available in many countries for example, USA, Canada, South Africa, UK, the European Union, etc. In about 25 countries Homo-sexuality is not an offence. Also, Adultery is no crime in India, Japan, China, Australia, etc.

In lieu of these recent rulings of the Supreme Court, there has been a growing demand of awarding the legal recognition to same sex marriages in India. Especially after the Decriminalisation of part of Section 377 of IPC which criminalises consensual unnatural sex as irrational, indefensible and manifestly arbitrary. Many petitions were filed in the Supreme Court to make same-sex marriages legal.

The stand of the Union Government is against the grant of legal recognition to same-sex marriages. The Solicitor General of India Tushar Mehta who appeared before Supreme Court as a counsel for Union Government emphasise that Marriage is a sacred institution, the decisions about the same should be taken by the Legislature only and not by the Judiciary. The Parliament is the more appropriate authority. Also, Marriage is a subject in the concurrent list, thus before any decision is made, the opinion of all the states and Union territories also needs to be considered.

Mukul Rohtagi, the Counsel for the Petitioners has implored the bench to substitute terms like “man”, ‘woman’, ‘husband’ and ‘wife’ under the Special Marriage Act with gender neutral terms such as ‘person’ and ‘spouse’ and the same-sex marriage should be legally allowed under the provision of Special Marriage Act 1954.

Same-sex relations and marriages are slowly but surely being accepted globally. This is a complex matter and a large number of hearings will be required. Religious, social, economic, biological and legal aspects have to be taken into consideration.