18-Oct-2023-Editorial

LEGAL ARGUMENT FOR SAME SEX MARRIAGE

The five-judge Constitution Bench, by a majority view held that same-sex marriage cannot be guaranteed as a legal right and that non-heterosexual couples cannot claim an unqualified right to marry.

Government Stand

The government invoked the “accepted view” that marriage between a biological man and woman is a “holy union, a sacrament and Sanskar (culture)” in India.

It holds the view that queer people will wreak havoc on social institutions and Parliament will never enact such a law.

Retired Judges View

More than 20 retired judges issued a statement saying that legalisation of same-sex marriage will “strike at the very root of the family system” and that “such a sensitive issue concerning the society at large be debated in the Parliament and State Legislature as well.”

The Union Law Minister

The Union Law Minister argued that the issue should be left to the “wisdom of the people.” And law professors such as Tahir Mahmood and G.S. Bajpai have also written about it.

Citizens with equal rights: Let us examine some of these arguments.

First, it is argued that legalising queer marriages will destroy the concept of family, which is the “fundamental building block of society.”

For long, queer people have had to deal with their rights being granted as gifts from heteronormative society. Queer people are demanding equal rights, not just of marriage, but of horizontal reservation and protection from natal families.

It is also argued that this is not a matter of judicial interference, but one of interpreting the statutes. There is no reason that statutes cannot be interpreted creatively in favour of fundamental rights.

Religion and Marriage & its interconnectedness

It is true that laws relating to marriage have a religious genesis. However, Indian law on marriage is a mixture of common law and religion. While traditionally, marriage under Hindu law is a sacrament, it stopped being so when divorce was introduced.

Marriage is now nothing, but a status conferred by law. The court said in the Sabarimala case that religion must give way to constitutional morality, though a review of the judgment is pending. Queer relationships were not an aberration in Hinduism.

It is also argued that the laws pertaining to marriage necessitate procreation. While this may be true, there seem to be no attempts to take away the marriage rights of heterosexual married couples who do not procreate as per mutual consent.

Social or Circumstantial Infertility

While entering into a queer relationship, both parties are aware that they will be unable to procreate. This is called ‘social’ or ‘circumstantial’ infertility.

If both parties decide to marry with the knowledge that one or both of them are impotent, there cannot be a case for taking away their rights merely because they are queer.

The conventional conceptualisations of family and marriage

It is also said that conventional conceptualisations of family and marriage are facing evolutionary challenges. This argument is based on the idea that a family comprises two parents of the opposite sex and their two children. The hijara ‘gharana’ system, maitri karar and other forms of alternative familial structures have existed for a long time in the sub-continent.

A legitimate legal need

Queer people cannot wait until society thinks it is acceptable for us to have rights. We refuse to be polite citizens, we will continue to be unapologetic about our sexuality, and we will continue to challenge widespread notions of respectability, of marriage, and procreation.

We refuse to shrink in the terror of knowing that the only way we can survive is if we are smart, lucky, or are fighters. We demand that notions of family and traditions be broadened and notions of acceptability and respectability be demolished.

Legal recognition of queerness and love should not be opposed by the state or by some supposedly well-meaning proponents of the doctrine of separation of powers. Queerness and queer love deserve not just legal recognition by the state, but to be celebrated.

Mains Questions

1. Legal recognition of queerness and love should not be opposed by the state or Judiciary. Comment (150 words) 10 M

Ans:

Legal recognition of queerness and love is a fundamental human right that should not be denied to any individual.

Denying individuals, the right to marry or have their relationships recognized by the law is a form of discrimination that has no place in a just and fair society.

The state and judiciary should uphold the values of equality and inclusivity by recognizing the rights of all individuals, regardless of their sexual orientation or gender identity.

Legal recognition of queerness and love would not only provide individuals with the legal protections and benefits that come with marriage, but it would also send a powerful message of acceptance and support to the LGBTQ+ community.

By embracing diversity and celebrating love in all its forms, we can build a more compassionate and equitable world for everyone.

2. The opposition to the same sex marriage in Indian context is more driven by prejudices than logic. Discuss (250 Words) 15 M

The issue of same-sex marriage has been a topic of debate in India for quite some time now. With some advocating for it and others vehemently opposing it, the question arises: why is there such a strong opposition to it in Indian society? The answer, unfortunately, lies in deeply ingrained prejudices and biases that have been perpetuated for centuries.

One of the main arguments against same-sex marriage is that it goes against traditional Indian values and norms. However, this argument is flawed as it assumes that traditional values are static and unchanging. In reality, traditional values have evolved over time and continue to do so. Moreover, many aspects of Indian culture and tradition celebrate non-traditional gender roles and identities, such as the hijra community.

Another argument often put forth against same-sex marriage is that it is unnatural and goes against the laws of nature. This argument again ignores the fact that nature is not a fixed entity but is constantly evolving. Furthermore, there are many examples of same-sex relationships and even mating behaviors in the animal kingdom, which suggests that such behavior is not unnatural.

Ultimately, the opposition to same-sex marriage in India is rooted in ignorance and prejudice. It is important for society to move past these biases and embrace all forms of love and relationships. By doing so, we can create a more inclusive and accepting society where everyone has the right to love and be loved.

3. Highlight the effects of Same sex marriage on family system in India. (150 Words) 10 M

Same-sex marriage is a topic that has been debated for years in many countries around the world. In India, same-sex marriage is not yet legally recognized, but the topic has gained traction in recent years. Although there is no official data on the number of LGBTQ+ individuals in India, it is estimated that there are millions of people who identify as LGBTQ+.

Regarding the effects of same-sex marriage on the family system in India, there are various opinions. Some argue that it would lead to the breakdown of traditional family values and religious beliefs. Others believe that it would promote inclusivity and equal rights for all individuals.

Nevertheless, it is important to remember that every family is unique and has its own set of values and beliefs. Same-sex marriage may not be universally accepted, but it is important to respect the right of individuals to choose their own partners and form families based on love and mutual respect.

In conclusion, the topic of same-sex marriage in India is complex and multifaceted. As society continues to evolve and progress, it is important to have open and respectful conversations about LGBTQ+ rights and inclusion.