New Delhi: The Supreme Court on Monday, March 13, transferred the pleas seeking recognition of same-sex marriages to a constitution bench, calling it a matter of “seminal importance”. The pleas, therefore, will be heard from April 18.
Two English-language newspapers – Hindustan Times and The Times of India – carried editorials on the issue hailing the decision of the apex court while flaying the Union government’s view on the matter.
The TOI editorial proposes civil unions, falling outside of the purview of personal laws of different religions, as a “smart solution” to address the question of marriage between homosexual couples. It goes on to cite examples from across the globe of how even religiously conservative countries such as Ireland have legalised same-sex marriages following a referendum. Various forms of civil unions, the editorial notes, gained popularity in France and northern America, and in Japan, where it is illegal for same-sex couples to be married, about 256 municipalities and 12 prefectures have instituted ‘partnership oath systems’.
While acknowledging that the political class would be discomfited by such a proposition, the editorial calls upon the Supreme Court to “uphold fundamental rights with or without popular endorsement” by understanding how such matters are being adjudicated around the world.
Batting for civil unions, the editorial says, “…stifling social conservatism is a reality that politicians won’t ignore. Therefore, civil unions can be a good beginning. And not just for queer couples. SC has had to intervene many times in favour of live-in heterosexual couples. Civil unions, therefore, are an option for any two people seeking a legal basis for their relationship.”
Describing the recognition of same-sex marriages as a ‘tricky issue’, the Hindustan Times editorial asks the all-important question of whether it should be left to the Supreme Court – as was the case in some countries – or to the parliament to enact a law.
Nevertheless, the newspaper argues that the constitutional principle of equality cannot be compromised at any cost. “Personal sensibilities of people, prejudice and dogmas cannot override the basic principle of the constitution: all citizens are equal. But same-sex marriage is a sensitive subject in a socially conservative society.”
While noting that decriminalisation of homosexuality in 2018 by the apex court was a “historic move”, the newspaper argues that the lack of recognition of same-sex marriages, however, would deny queer community basic rights, such as those linked to medical consent, pensions, adoption or even simpler things such as club memberships.
It also found fault with the Union government’s view that any interference with marriage between a biological man and biological woman “would cause complete havoc with the delicate balance of personal laws in the country and in accepted societal values”.
The government also said same-sex marriages are not compatible with the concept of the “Indian family unit”, which, it argued, consists of “a husband, a wife, and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two – who are reared by the biological man as a father and the biological woman as mother”.
Meanwhile, a three-judge bench led by Chief Justice D.Y. Chandrachud on Monday, March 13, transferred the matter to a five-judge constitution bench noting that it is only logical that a constitution bench heard the matter given that it involves substantial questions of law and the interpretation of the constitution.