Love Knows No Gender: Freedom of Same-Sex Marriage-A Paradigm Shift
Love is an incredible force that breaks all barriers. It doesn’t care about who you are or where you’re from. It only cares about how you feel. But for a long time, marriage was only for certain people. That’s not how love works. But things are getting better, and people are starting to believe that love is for everyone and has no bounds. The belief that everyone has the right to declare, "This is the person I want to spend my life with," is gaining acceptance. Laws and perspectives are gradually aligning with this truth.
However, a recent judgment by a five-judge bench of the Supreme Court took a stance against same-sex marriage, diverging from the acceptance of civil unions. This decision involved dismissing petitions advocating for the legalisation of same-sex marriage and calling for a thorough examination of the Special Marriage Act of 1954 provisions.
The Chief Justice of India said that the court cannot change the Special Marriage Act of 1954 to include same-sex couples. They mentioned it's up to the Parliament and state legislatures to make new laws about this.
But even after the verdict of the Supreme Court, many people still support same-sex marriages because they think that everyone has equal rights to choose their life partner or with whom they want to live.
Introduction
Same-sex marriage is a marriage between two people of the same gender. It allows them to share their lives and responsibilities and enjoy their rights like other couples.
In 2001, the first same-sex marriage took place in the Netherlands, which led more than 30 jurisdictions to make laws allowing gays and lesbians to marry, mainly in Europe and the Americas. Now, 35 countries have legalised same-sex marriage, representing 17% of the global population. But 68 countries are still not given legal recognition, and some have strict laws against LGBTQ2+.
Challenges LGBTQ2+ individuals faced
1. Caste and class discrimination
a. Limited access to justice: Lack of awareness about their legal rights, financial limitations, and social discrimination.
b. Marginalised communities: LGBTQ2+ individuals faced double discrimination. Social and economic inequalities, facing social stigma.
2. Gender identity and expression
a. Limited legal recognition: In India, transgenders and non-binary individuals still have to face hurdles to marry.
b. Transgender and Non-Binary Lived Experiences: The legal recognition of same-sex marriage often overlooks the specific needs and challenges faced by transgender and non-binary individuals within LGBTQ2+ communities.
3. Religion and cultural norms
a. Cultural Diversity: India's rich tapestry of diverse cultures and traditions presents unique challenges and opportunities for accepting same-sex marriage.
Leading Cases
1. Navtej Singh Johar v. Union of India (2018):
Background: The Court said "no more" to Section 377 of the Indian Penal Code, which is often used to target LGBTQ2+ individuals and same-sex couples.
Legal Reasoning: In the verdict, the Supreme Court decriminalised Section 377, recognising the right to privacy and dignity of LGBTQ2+ individuals. But it didn’t legalise same-sex marriage.
Impact: While not directly recognising same-sex marriage, Johar's judgment marked a significant victory for LGBTQ2+ rights in India. It paved the way for further legal challenges.
2. Puttaswamy v. Union of India (2017):
Background: The Court said everyone has the right to privacy.
Legal Reasoning: Although not directly about marriage, it boosted LGBTQ+ rights arguments by emphasising personal choice and privacy.
Impact: Helped make a stronger case for same-sex marriage based on the right to privacy and freedom of choice.
Why India should legalise same-sex marriage
Recognition and Acceptance: - As we all know, India is rich in culture and diversity, and by legalising same-sex marriage, India will take a big step towards equality and accepting LGBTQ2+.
a. Equality and non-discrimination: - As in our constitution, it is mentioned that no one should be discriminated against based on religion, race, caste, sex, or place of birth. But civil unions LGBTQ2+ people are still facing discrimination. So, by legalising same-sex marriage, India will mark a milestone towards equality for all.
b. Right to privacy and family life: - An ordinary couple has a fundamental right to have privacy and family. Same-sex couples also deserve the same legal recognition and fundamental rights as other couples.
c. Breaking Stereotypes: - For a long time, marriage was only between men and women, but now it will break the stereotypes and misconceptions about LGBTQ2+ and same-sex marriage.
d. Right to love: Everyone has the right to choose whoever they want; no one can stop them from choosing their life partner.
Conclusion
Love knows no boundaries, the road to true equality is still being paved. Same-sex marriage is not just about legality, but it is also about love and respect.
This represents the shift towards a society that embraces diversity and acknowledges the fundamental right of every individual to love and marry without any discrimination.
Disclaimer: Kindly note that the views and opinions expressed are of the author(s), not Law Colloquy.
