Supreme Court refers same-sex marriage pleas to Constitution bench

Tags: National News

The Supreme Court has set up a five-judge Constitution bench to hear petitions seeking legal recognition of same sex marriages.

An overview of the news

• The bench set up by Chief Justice of India D Y Chandrachud comprises Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli and PS Narasimha, besides the CJI.

• The Supreme Court had on March 13 referred the petitions to the Constitution bench stating the matter raised questions of “seminal importance”.

• A three-judge bench, led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, set down the matter for final arguments before a Constitution bench from April 18 after noting that the petitions involve the interplay between constitutional rights and specific legislative enactments, including the Special Marriage Act, 1954.

Background:

• The Delhi high court in July 2009 de-criminalised consensual homosexual acts in private by declaring as unconstitutional a part of Section 377 of the Indian Penal Code that criminalises unnatural sex. 

• However, in December 2013, the Supreme Court set aside the HC verdict, holding it was for the legislature to take a call on the controversial provision.

Adoption of a child in same-sex marriage

• The bench said one of the issues raised before it also relates to the rights of transgender couples to marry. 

• While hearing the petitions,CJI Chandrachud said that it is not necessary that a child adopted by a homosexual couple will be a homosexual.

What is the Centre's stance on same-sex marriage?

• In an affidavit filed before the apex court, the government has opposed the petitions and submitted that despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country.

• At the same time, it submitted that although the Centre limits its recognition to heterosexual relationships, there may be other forms of marriages or unions or personal understandings of relationships between individuals in a society and these "are not unlawful".

Is same-sex marriage legal in India?

• On September 6, 2018, the SC decriminalised consensual gay sex between adults in the Navtej Singh Johar verdict.

• It also decriminalised Section 377 of the India Penal Code (IPC) which considered sex with the same gender as a criminal activity. 

• However, it said that this should not be meant as conferring any right including the right to marry. So, homosexual couples currently do not have a right to legally marry in India.

Which countries have legalised same-sex marriage?

• Currently, there are 32 countries globally where same-sex marriage is legal.

• These are Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States of America and Uruguay.