Same Sex Marriage: Centre’s Prehistoric approach towards legalising it. Farhan Saquib Legal Article Mon, May 15, 2023, at ,09:04 PM What is LGBTQ Community?The LGBTQ community refers to people who identify as lesbian, gay, bisexual, transgender, or queer/questioning. In India, the community has faced significant legal, social, and cultural discrimination, although there have been some positive developments in recent years.In 2018, the Indian Supreme Court overturned a colonial-era law known as Section 377 of Indian Penal Code, which criminalised same-sex relationships and was used to discriminate against LGBTQ people. This was a significant victory for the community and a step towards greater equality.However, despite this legal progress, many LGBTQ people in India still face discrimination, harassment, and violence. There is also a lack of legal recognition for same-sex relationships and gender identity. Same-sex marriage is not legal, and transgender individuals face significant barriers to accessing healthcare, education, employment, and housing.Nonetheless, there are various organisations, activists, and allies working to advance LGBTQ rights in India. Many individuals and groups are advocating for legal recognition of same-sex relationships and gender identity, as well as greater societal acceptance and inclusivity for the community.Social Development in India-In recent years, there has been some progress in social development in India regarding the LGBTQ community and the homophobic approach. In the case of Navtej Singh Johar v. Union of IndiaThe Supreme Court ruled that consensual same-sex relations were no longer a criminal offence, overturning a colonial-era law that had been used to prosecute LGBTQ individuals.This landmark decision was a significant step towards recognizing the rights of the LGBTQ community and reducing the stigma and discrimination they face. However, despite the legal progress, social attitudes towards LGBTQ individuals in India remain largely conservative and traditional, with many people still holding homophobic beliefs and attitudes.The community in India still faces significant challenges, including discrimination, harassment, and violence. Many individuals in India continue to face discrimination in education, employment, and healthcare, and often experience social isolation and rejection from family members and communities. However, there are also positive signs of change, with a growing number of LGBTQ individuals and allies speaking out against discrimination and advocating for greater acceptance and inclusivity. There are also several LGBTQ rights organisations in India working to promote equality and educate the public about the challenges faced by the community. While there is still a long way to go towards achieving full equality and social development for the community in India, the legal progress and increasing awareness and advocacy efforts provide hope for a more inclusive and accepting society in the future.Why India has not recognized same sex marriage yet? Firstly, India is a culturally conservative country with strong family values, and traditional gender roles are deeply ingrained in Indian society. Homosexuality was criminalised in India until 2018, when the Supreme Court of India decriminalised it by striking down Section 377 of the Indian Penal Code. However, despite the legal progress, social acceptance of homosexuality remains low, and there is significant opposition to same-sex marriage in many parts of the country. Secondly, the legal framework in India does not currently provide for same-sex marriage. The legal definition of marriage in India is based on the Hindu Marriage Act, which defines marriage as a union between a man and a woman. There is no specific law that recognizes same-sex marriage, and attempts to introduce legislation to legalize same-sex marriage have been met with resistance. Lastly, India is a federal country, and marriage laws are governed by state governments. While some states in India have taken steps to recognize same-sex relationships, such as legalizing same-sex partnerships and providing benefits to same-sex couples, there has been no statewide legalization of same-sex marriage. Recognition of Same Sex Marriage-As of now, Central Government has not taken any steps to legalize same-sex marriage in India. The Indian government has stated that it does not intend to recognize same-sex marriage, citing various reasons such as cultural and religious values, as well as the lack of a legal framework to support it.In 2017, the Indian government took a stand against same-sex marriage in the Delhi High Court, stating that "The institution of marriage is not only a social institution but also a legal one, with a legal framework defining the relationship between a man and a woman." However, this position has been challenged by activists and supporters of LGBTQ+ rights, who argue that marriage is a fundamental right that should be available to all, regardless of sexual orientation.However, the Indian government has not yet taken any concrete steps towards legalizing same-sex marriage. It is important to note that marriage laws in India are primarily governed by state governments, so there is scope for individual states to take steps towards recognizing same-sex marriage. Some states, such as Kerala and Tamil Nadu, have expressed support for same-sex marriage, but as of now, no state has taken the step to legalize it.Central Government on Same Sex Marriage Currently a petition is file in Supreme Court to legalise same sex marriage.Chief Justice of India DY Chandrachud reminded the petitioners seeking legal recognition of gay weddings in India that Parliament had the authority to act on the topic of marriage and divorce, and so enquired as to the extent of the Supreme Court's intervention in such matters.The Constitution bench Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha was hearing the batch of petitions seeking legal recognition for same sex marriages in India.The remarks were made in response to arguments of Senior Advocate Maneka Guruswamy that the government cannot come to court and say that this is a matter of the Parliament. She claimed that when Fundamental rights of a community are violated, they have the right to approach the Constitutional Court under Article 32.In the Supreme Court, the Centre argued that marriage between a biological man and a woman is a holy union, a sacrament, and a sanskar in India.Marriage, according to the government, is based on customs, rituals, practises, cultural ethos, and societal values. A man and woman living as a family with children produced from the union cannot be likened to a same-sex marriage. The country's marriage laws have been developed and structured by the Parliament to acknowledge only the union of a man and a woman.Registration of same-sex marriages would be a breach of both current personal and codified law requirements.The Special Marriage Act of 1954 establishes a civil marriage for couples who are unable to marry under their personal law. The administration said that any exception from this standard must go through the legislature, not the Supreme Court.Constitution of a Committee to give rights to LGBTQ+ CommunityThe Government has declined the plea to legalise same sex marriage but has agrred to give some rights which every individual is entitled to irrespective of his gender. Now after framing all the major issues faced by the community, a committee will suggest the rights and recognition which can be given to the community.As soon as the Constitution Bench began hearing today, Solicitor General Tushar Mehta informed the bench that he had taken instructions about the bench's suggestions. "The government is upbeat. We've concluded that this will require collaboration from more than one ministry. As a result, a committee led by no less than the cabinet secretary would be formed,". The SG stated that the petitioners' attorneys can make ideas and communicate their difficulties, and that the Government will address them "to the extent legally permissible.ConclusionIn India, same-sex marriage is currently not legal. Section 377 of the Indian Penal Code, which criminalized homosexual acts, was struck down by the Supreme Court of India in 2018, which was a significant step forward for LGBTQ+ rights in the country. However, same-sex marriages are not yet legally recognized.The debate over whether same-sex marriage should be legalized in India is ongoing. Proponents of legislation argue that it would promote equality and provide legal recognition and protection for same-sex couples, while opponents argue that it goes against traditional cultural values and religious beliefs.Ultimately, whether same-sex marriage should be legalized in India is a matter for the Indian government and legal system to decide. However, it is worth noting that there is a growing movement for LGBTQ+ rights in India, and several states and cities have taken steps to provide legal recognition and protection for same-sex couples, such as granting them the right to adopt children or inherit property.Reference: https://www.hindustantimes.com/india-news/samesex-marriage-in-india-supreme-court-to-hear-pleas-on-validation-of-same-sex-marriages-what-s-the-debate-101681699323767.html https://www.livelaw.in/top-stories/same-sex-marriage-centre-agrees-to-certain-rights-same-sex-couples-without-legal-recognition-marriage-227819 https://indianexpress.com/article/explained/supreme-court-sc-same-sex-marriage-hearing-live-updates-8572559/