Why is the Legalization of Same Sex Marriage so Important?

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Disclaimer- The following piece is based on a mix of opinions and facts derived from various sources. We do not intend to offend the sentiments of any individual or community. 

As we know, marriages are a social necessity for an individual irrespective of their gender or sex. Marriage is a personal right and is a right given to everyone to exercise in society. Legalizing same-sex marriages doesn’t just uphold the equality or liberty of the civilians but it transcends the stereotypical and hostile world towards LGBTQ community and stands as a declaration of societal acceptance, and also as a fundamental step towards a more inclusive society. 

The power of legalization of any activity has a tremendous impact on society especially in a country like India. Same-sex marriage as a civil law enables the queer community to express their love openly to their partners and do valuable contributions to their community which is not the case if this is criminalized as the law itself can create barriers that hinder their pursuit of happiness and equality. Furthermore, the same-sex marriages align with principles such as individual autonomy and freedom of choice and also empower the community to live in a society which is free from constraints and prejudices.

(Image from: THE HINDU) 

In contemporary society, the demand for the right to same-sex marriages has become the pinnacle of all the discussions. Hence, there have been considerable amounts of parades, movements and debates to decriminalize same-sex marriages across the globe. While the first country to legalize same-sex marriage is Netherlands(2001), Thailand on March 27th, 2024 joins the club of almost 30 countries that have so far legalized same-sex marriage. Few other countries to have passed the bill on same-sex marriage include France(2013), Germany(2017), United States(2015), Australia(2017), Switzerland(2022) and many more. 

In India, the recent uprisings for legalization of same-sex marriage led its way to the Supreme Court of India. In 2023, in the case Supriyo v/s Union of India, the five-judge bench under Chief Justice D.Y.Chandrachud rejected the plea for queer persons’ right to marry in India. Furthermore, the bench declared that the enactment of laws related to marriage and also considering same-sex marriage under Special Marriages Act comer under the purview of legislature, the Parliament of India. The bench however agreed that transgender persons in transexual relationships have the right to marry under the existing legal framework. 

D.Y.Chandrachud delved into the notion “homosexuality or gender queerness is not native to India”. He said to deflate this prejudice, one has to define the term ‘Indian’. The Chief Justice did so by recording that “a thing, an occurrence, or a practice is ‘Indian’ when it is present in India, takes place here, or is practiced by Indian citizens. Something which is Indian could be present from time immemorial or it could be a recent development… Sexual and gender minorities are as Indian as their fellow citizens who are cisgender and heterosexual”. He also observed that “It is not queerness which is of foreign origin but the many shades of prejudice in India which are remnants of a colonial past”. Justice Sanjay Kishan Kaul accepted non-heterosexual relationships as part of the “pluralistic social fabric” and an “integral part of Indian culture”.

The final judgment of the supreme court upheld the decision that the right to marry is not was not a fundamental right and could not be demanded as such by the LGBTQ community. The court majorly took a seat back since any intervention in this case would encroach on the legislative domain and breach the doctrine of separation of powers. Lastly, the Bench entrusted a great deal of expectation on a “high-powered committee” chaired by the Cabinet Secretary. The Committee would set out entitlements and rights for queer persons. 

References:
https://www.pewresearch.org/religion/fact-sheet/gay-marriage-around-the-world/ 
https://www.thehindu.com/news/national/scs-same-sex-marriage-verdict-acts 
https://www.scobserver.in/reports/plea-for-marriage-equality-judgement-summary 
Full judgement on same-sex marriage in India: https://www.youtube.com/live/Lw7GbuWWO0Y?si=6cGWvB-otks26W48 

By- Nishita Sinha

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