Why is it in the News?

A five-judge Constitution Bench led by Chief Justice of India (CJI) D Y Chandrachud unanimously rejected same-sex marriage recognition. In a 3-2 majority decision, the Bench also refused to authorize civil unions for non-heterosexual couples.

What is the Supreme Court's Observation?

The Denial of Marriage as a Fundamental Right:

• All five judges on the Bench agreed that there's no fundamental right to marry in the Constitution.

Limitations on Modifying the Special Marriage Act (SMA), 1954:

• They also unanimously agreed that changing the Special Marriage Act (SMA) of 1954 using gender-neutral language to allow same-sex marriage isn't possible.
• The petitioners wanted the Supreme Court to interpret the word marriage as being between spouses instead of man and woman.
• Alternatively, they asked for removing the gender-restrictive provisions of the SMA.
• The Chief Justice of India (CJI) said that striking down the SMA provisions would impact the legal framework for interfaith and inter-caste couples.
• Interpreting the SMA in a gender-neutral way, he added, would be like making new laws from the judiciary, which goes against the separation of powers.

Rejection of Civil Unions for Non-Heterosexual Couples:

• The bench ruled 3:2 against allowing civil unions for non-heterosexual couples.
• The minority judges believed that the right to form unions comes from the fundamental right to freedom of speech and expression, and the right to life.
• They argued that the right to enter into a union shouldn't be restricted based on sexual orientation, as it's a violation of Article 15 of the Constitution.
• The majority view was that it's the legislature's role, not the Court's, to recognize and grant legal status to non-heterosexual relationships formally.
• Regarding rights for non-heterosexual couples, all five judges noted that a high-level Cabinet committee will consider the rights that can be given to non-heterosexual couples.
• This could include joint bank accounts, same-sex spouses being beneficiaries for provident funds, pensions, inheritance, and making medical decisions for the other spouse.

Considerations on Adoption Rights of Children:

• On the rights to adopt children, the Supreme Court unanimously agreed that one's sexual orientation shouldn't determine one’s suitability to be adoptive parents.
• However, in a 3:2 split verdict, the Court upheld the existing regulations that deny unmarried couples, including queer individuals, the right to adopt a child as a couple.
• Since same-sex marriage isn't legal in India, they also cannot adopt children as a couple.
• In 2022, the Central Adoption Resource Authority (CARA) issued new Adoption Regulations, requiring a couple to be in a stable marital relationship for two years to be eligible for adoption.
• This made it impossible for queer couples to adopt, as it prohibited individuals in live-in relationships from adopting children.
• The minority view by CJI Chandrachud and Justice Kaul argued that CARA's guidelines discriminate against unconventional, unmarried couples seeking to adopt children.

What is the Legal Status of Same-Sex Marriages in India?

• The right to marry isn't explicitly recognized as a fundamental or constitutional right in the Indian Constitution; instead, it's a statutory right.
• However, the recognition of marriage as a fundamental right has evolved through judicial decisions by India's Supreme Court.
• These legal declarations are binding on all courts throughout India under Article 141 of the Constitution.

Earlier Views of the Supreme Court on Same-Sex Marriages:

• Marriage as a Fundamental Right (Shafin Jahan v. Asokan K.M. and others 2018):
• The Supreme Court, while referring to Article 16 of the Universal Declaration of Human Rights and the Puttaswamy case, determined that the right to marry a person of one's choice is an integral aspect of Article 21 of the Constitution.
• Article 16 (2) in the Indian Constitution prohibits discrimination based on religion, race, caste, sex, descent, place of birth, residence, or any of these factors.
• The right to marry is an inherent part of the liberty guaranteed by the Constitution as a fundamental right, as it pertains to individuals' ability to make decisions crucial to their pursuit of happiness, including matters of belief and faith.
• LGBTQ Community's Entitlement to Constitutional Rights (Navtej Singh Johar and others v. Union of India 2018):
• The Supreme Court ruled that members of the LGBTQ community "are entitled, just like all other citizens, to the complete spectrum of constitutional rights, including the liberties protected by the Constitution."
• They have the right to equal citizenship and "equal protection of the law.

What are the Arguments Supporting Same-Sex Marriage?

• Equal Rights and Protection Under the Law: Every person, regardless of their sexual orientation, has the fundamental right to marry and build a family.
• Parity in Legal Rights: Same-sex couples should enjoy the same legal rights and safeguards as heterosexual couples.
• Combating Discrimination: The non-recognition of same-sex marriage constitutes discrimination that undermines the dignity of LGBTQIA+ couples.
• Strengthening Families and Communities: Marriage offers social and economic advantages to couples and their families, which are equally valuable to same-sex couples.
• Cohabitation as a Fundamental Right: The Chief Justice of India (CJI) has recognized cohabitation as a fundamental right, emphasizing the government's responsibility to legally acknowledge the societal significance of such relationships.
• Challenging Absolute Biological Gender: The Supreme Court of India acknowledges that biological gender is not an absolute concept and that gender is more intricate than merely one's physical characteristics.
• The understanding of a man or woman is not fixed.
• Global Acceptance: Same-sex marriage is legally recognized in many countries worldwide.
• Denying this right to individuals in a democratic society contradicts global principles. Notably, same-sex marriage is legal in 32 countries.

What are the Arguments Opposing Same-Sex Marriage?

• Religious and Cultural Beliefs: Many religious and cultural communities uphold the belief that marriage should exclusively involve a man and a woman.
• They contend that altering the traditional definition of marriage would contradict their fundamental religious and cultural principles.
• Procreation: Some argue that the primary purpose of marriage is procreation, and same-sex couples are unable to have biological children.
• Consequently, they believe that permitting same-sex marriage contradicts the natural order of reproduction.
• Legal Concerns: There are apprehensions that legal issues may arise if same-sex marriage is allowed, including complications related to inheritance, taxation, and property rights.
• Some argue that modifying existing laws and regulations to accommodate same-sex marriage would be overly complex.
• Adoption Challenges: When queer couples adopt children, it can lead to societal stigma, discrimination, and potential negative effects on the emotional and psychological well-being of the child.
• This is particularly relevant in Indian society, where universal acceptance of the LGBTQIA+ community is not yet achieved.

What Can Be the Way Forward?

• Promoting Awareness: Conduct awareness campaigns to foster equality and acceptance of all sexual orientations, broadening public understanding of the LGBTQIA+ community.
• Legal Reforms: Consider amending the Special Marriage Act of 1954 to permit same-sex couples to legally marry and access the same rights and privileges as heterosexual couples.
  • In the interim, establishing contract-like agreements can provide similar rights for LGBTQIA+ individuals.
• Dialogue and Engagement: Initiate conversations with religious leaders and communities to bridge the gap between traditional beliefs and contemporary attitudes regarding same-sex relationships.
• Legal Challenges: The Indian LGBTQIA+ community can legally challenge the constitutionality of existing laws that prohibit same-sex marriage.
  • Such challenges can set a legal precedent, potentially leading to the legalization of same-sex marriage.
• Collaboration: Achieving the legalization of same-sex marriage necessitates a collective effort involving various stakeholders, including the LGBTQIA+ community, government, civil society, and religious leaders.
• Collaboration is key to creating a more inclusive society where everyone has the freedom to love and marry whomever they choose, regardless of their gender.

What is the Special Marriage Act (SMA) 1954?

In India, all marriages can be registered under their respective personal laws, such as the Hindu Marriage Act, 1955, or the Muslim Marriage Act, 1954. Alternatively, couples can choose the Special Marriage Act, 1954, for their marriage registration, ensuring the protection of the rights of both partners.

About:

• The Special Marriage Act, 1954, is legislation enacted by the Parliament of India that provides for civil marriages, open to Indian citizens and nationals abroad, regardless of their religious or faith affiliations.
• This act enables individuals from diverse religious backgrounds to unite in matrimony and outlines the procedures for both solemnizing and registering the marriage.

Key Provisions:

• Advance Notice to the Marriage Officer: Couples are required to provide a notice to the Marriage Officer, along with the necessary documents, 30 days prior to the intended wedding date.
• Registration Process: After the submission of documents, both parties must be present for the issuance of a public notice, inviting objections.
• The registration takes place 30 days after the notice date, following the resolution of any objections that may have arisen during that period, overseen by the Sub-Divisional Magistrate (SDM).
• Presence of Parties and Witnesses: On the registration day, both parties, along with three witnesses, must be present to complete the marriage registration process.

Why is it in the News?

Congress leader Dr. Jaya Thakur on Monday filed a PIL in the Supreme Court for implementing the Women's Reservation bill before the 2024 general elections. Former congress president Sonia Gandhi also alleges BJP govt of creating anti-women policies and deprived women of their rights.

What Are the Main Provisions of the Women’s Reservation Bill?

• Reservation for Women in the Lower House: The Bill introduces Article 330A to the constitution, borrowing inspiration from Article 330, which focuses on seat reservations for SCs/STs in the Lok Sabha.
• The Bill proposes the rotation of reserved seats for women among different constituencies in states or Union Territories.
• For seats designated for SCs/STs, the Bill aims to reserve one-third for women in a rotational manner.
• Reservation for Women in State Legislative Assemblies: The Bill introduces Article 332A, making it mandatory to reserve seats for women in every state Legislative Assembly.
• Additionally, one-third of the seats reserved for SCs and STs must be specifically allocated to women, and one-third of the total seats filled through direct elections in the Legislative Assemblies will also be reserved for women.
• Reservation for Women in NCT of Delhi (New Clause in 239AA): The Bill amends Article 239AA of the constitution, which grants special status to the Union Territory of Delhi as the national capital concerning its administrative and legislative functions.
  • The amendment specifies that laws enacted by the parliament shall apply to the National Capital Territory of Delhi.
• Commencement of Reservation (New Article - 334A): The reservation for women will take effect after the census conducted following the Bill's commencement has been published.
• Subsequently, delimitation will occur to allocate reserved seats for women. This reservation will initially be implemented for a 15-year period.
• However, it will persist until a later date, as determined by a law passed by Parliament.
• Rotation of Seats: Seats reserved for women will undergo rotation after each delimitation, in accordance with a law enacted by Parliament.

What Is the Historical Background of Women's Reservation in Indian Politics?

• The roots of women's reservation in Indian politics can be traced back to the Indian national movement.
• In 1931, leaders Begum Shah Nawaz and Sarojini Naidu, representing three women's organizations, submitted a joint official memorandum to the British Prime Minister.
• This memorandum addressed the status of women in the new Constitution.
• The National Perspective Plan for Women, proposed in 1988, recommended reserving seats for women at various political levels, starting from the panchayat and extending to Parliament.
• These recommendations paved the way for the groundbreaking 73rd and 74th amendments to the Constitution.
• These amendments mandated that all State governments reserve one-third of seats for women in Panchayati Raj Institutions and one-third of chairperson positions at all levels of Panchayati Raj Institutions, as well as in urban local bodies.
• Within these reserved seats, one-third were specifically allocated for Scheduled Caste/Scheduled Tribe women.
• In 2001, the National Policy for the Empowerment of Women expressed the idea of considering reservations in higher legislative bodies.
• In May 2013, the Ministry of Women and Child Development established a committee on the status of women, which recommended ensuring a minimum of 50% reservation of seats for women in various governmental bodies, including local bodies, State Legislative Assemblies, Parliament, ministerial positions, and all government decision-making bodies.
• In 2015, the Report on the Status of Women in India highlighted the inadequate representation of women in state assemblies and Parliament.
• It recommended reserving at least 50% of seats for women in local bodies, State Legislative Assemblies, Parliament, ministerial positions, and all government decision-making bodies.

What Are the Supporting Arguments for the Bill?

• Historical Underrepresentation: Despite some progress, the number of women Members of Parliament remains relatively low.
• Research has shown that women elected under reservation policies invest more in public goods closely related to women's concerns.
• Reservations in local bodies have enabled women to make meaningful contributions.
• Gender Equality: Enhancing women's representation in politics is a crucial step toward achieving gender equality.
• However, India's ranking in the Global Gender Gap Report 2022, at 48th out of 146 in Political Empowerment, suggests room for improvement, with a score of 0.267, notably lower than top-ranking countries like Iceland and Bangladesh.
• Women's Right to Self-representation and Self-determination: Ensuring proportional representation for underrepresented groups in the political system is vital for their ability to influence policy-making.
• The Convention on the Elimination of All Forms of Discrimination Against Women underscores the need to eliminate discrimination in political and public life.
• Diverse Perspectives: A more diverse legislature, including a substantial number of women, can bring a broader range of perspectives to decision-making.
• This diversity can lead to more effective policy formulation and governance.
• Empowerment of Women: Women's reservation in politics empowers them at various levels, encouraging their participation in politics and inspiring them to take on leadership roles in other sectors.
• Promotion of Women's Issues: Women in politics often prioritize and advocate for issues directly affecting women, such as gender-based violence, women's health, education, and economic empowerment.
• Their presence can lead to the prioritization of these issues in policy discussions.
• Role Models: Women leaders in politics can serve as role models for young girls, encouraging them to aspire to leadership positions in various fields.
• Representation in politics can break stereotypes and inspire future generations.
• Examples include Indira Gandhi, India's first and only female Prime Minister, who served from 1966 to 1977, and Sushma Swaraj, the second woman External Affairs Minister of India after Indira Gandhi.

What Are the Arguments Against the Bill?

• Exclusion of Separate OBC Reservation: The Bill, while providing separate reservation for Scheduled Castes and Scheduled Tribes women within the existing one-third quota, does not include separate reservations for Other Backward Classes (OBC) women, who constitute a significant portion of the female population.
• No Reservation in the Rajya Sabha and Legislative Councils: The Bill does not extend the reservation to women in the Rajya Sabha and legislative councils, which limits the scope of its impact.
• Dependence on Census and Delimitation: The implementation of reservation for women in Parliament relies on the census and delimitation processes.
• The delay in conducting the census and the potential political sensitivity of delimitation, particularly in regions with slower population growth, could hinder the bill's effectiveness.
• Concerns of Women as Proxies: The phenomenon of 'Panchayat Patis' in local governments, where husbands use their wives as proxy candidates for reserved seats, has raised concerns.
• With an extension of reservations to women in Parliament, there is a fear of the emergence of 'MP and MLA Patis,' where husbands wield real power.
• Challenges to Equality Principles: Opponents argue that the bill contradicts the principles of equality enshrined in the Constitution.
• Some believe it may perpetuate the unequal status of women, as they might not be perceived as competing on merit.
• Diverse Interests of Women: Women do not constitute a homogenous group, unlike caste-based groups.
• As a result, the arguments used to justify caste-based reservations may not be directly applicable to reservations for women.
• Women's interests cannot be isolated from other social, economic, and political strata.
• Restriction of Voter Choice: Some opponents of the Bill argue that seat reservations for women would limit voter choice.
• They propose alternative methods such as reservations for women within political parties and the implementation of dual-member constituencies.
• Lack of Widespread Consultation: The bill was introduced through a "supplementary list" in a hastily organized Parliament session.
• Critics argue that such a vital constitutional amendment for women's reservations should have been introduced following extensive discussion and analysis.

How Can Effective Implementation of Women's Representation be Achieved?

• Strengthen Independent Decision Making: Establishing independent monitoring systems or committees that explicitly prevent family members from exerting influence on the decision-making process of women representatives.
• This can be achieved by reducing the impact of patriarchal mindsets.
• Increasing Awareness and Education: Disseminate awareness among women about their rights and the significance of their participation in politics.
• Educational programs and awareness campaigns are instrumental in raising women's political engagement.
• Addressing Gender-based Violence and Harassment: Gender-based violence and harassment are significant barriers to women's involvement in politics.
• Address these issues through policy and legal measures to create a safer and more supportive environment for women in politics.
• Electoral Process Reforms: Implement reforms, such as introducing proportional representation and preferential voting systems, to enhance women's representation in politics.
• These reforms ensure that more women can be elected.

These are only a few strategies to increase the number of women in Indian politics. Achieving lasting change necessitates a multifaceted approach that tackles various challenges simultaneously.