Ensuring the same rights: The govt must work on allowing same-sex marriage, can amend the Special Marriage Act to stave off religious backlash

The momentum from these judgments should then open the doors for property, spousal, and even adoption rights. (Representative image, Credit: The Indian Express)

The Centre pleaded that no one is dying for want of a marriage certificate, while seeking adjournment of petitions before the Delhi High Court on recognition of same-sex marriage. However, it must keep in mind that the right to dignity is central to the fundamental right to life. It cited the pandemic and the High Court’s earlier order that only urgent matters should be taken up. The petitioners—representing an estimated 70 million LGBTQ individuals in the country—argued that deciding the urgency of this matter should be left to the court.

In the pandemic, a marriage certificate can ensure that same-sex partners are empowered just like any spouse in a straight marriage.

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Even as the Centre seeks to delay the hearing, its stance is clear; it has opposed legalisation of same-sex marriages earlier pleading “age-old customs, rituals, practices, cultural ethos and societal values”. It has claimed a “legitimate State interest” in legislating on marriage. It has also suggested the courts don’t intervene to guarantee these rights to the community, stating that “…legal recognition of marriage is essentially a question to be decided by the legislature and can never be a subject matter of judicial adjudication.”

Such recognition, it contends, “would cause complete havoc with the delicate balance of personal laws in the country.” It is hard to understand how “concerns of societal morality” make same-sex relationships “not comparable” with an “Indian family unit concept” of husband, wife and children.

Such a regressive understanding of family not only erodes the rights of same-sex individuals but also of heterosexual single parents. The Supreme Court, in Navtej Johar (that finally decriminalised homosexuality) and Puttaswamy, has offered cues on legalisation of same-sex marriage, holding family life and sexual orientation as integral to dignity of an individual. The momentum from these judgments should then open the doors for property, spousal, and even adoption rights.

While the present should inspire—same-sex unions have legal sanction in 29 countries, nationwide or in certain jurisdictions—there are so many examples of well-tolerated queer unions in Hindu mythology that it should be embarrassing for anyone to claim that India’s ‘cultural ethos’ doesn’t allow this. The government has to eventually force the conservative section of the society to contend with change—legalisation of same-sex unions will lessen avenues for discrimination. If it wants to avoid a religious backlash, it can start with recognition under the secular Special Marriage Act, along with removal of the anti-privacy 30-day notice period requirement.

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