The leader of the National Congress Party (NCP) and member of Parliament, Supriya Sule, recently introduced a private member’s Bill in the Lok Sabha which states that same-sex marriage should be legalised. The Bill proposes that after Section 4 of the Special Marriage Act, 1954, an insertion be made that “notwithstanding anything contained in this Act or any other law for the time being in force, a marriage between any two persons of same sex may be solemnized under this Act”. The Bill proposes to fix the age of marriage at 21 years in case both the parties are males and 18 years in case both are females. It also proposes to replace the words “husband” and “wife” with “spouse” by amending the various sections of the Special Marriage Act, 1954.
While introducing Bill under the Statement of Objects and Reasons, Sule said that in 2018, the Supreme Court had struck down an archaic, draconian legislation of the Indian Penal Code, 1860, namely Section 377. Through this landmark judgment (Navtej Singh Johar vs Union of India), homosexuality was effectively decriminalised. While this was a much-needed, progressive leap forward, LGBTQIA+ individuals still face persecution, discrimination and social stigma within society.
She pointed out that Justice DY Chandrachud in Justice KS Puttaswamy (Retd.) vs Union of India had observed that “family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognizes an inviolable right to determine how freedom shall be exercised”. She added that while the determination of one’s sexual orientation has been realised, LGBTQIA+ individuals are still unable to marry and create their own families. In addition, LGBTQIA+ couples have no access to rights that heterosexual couples are entitled to upon marriage, such as succession, maintenance and pensions, etc. Therefore, it is of utmost importance to amend the Special Marriage Act, 1954, to legalise same-sex marriage and provide legal recognition to married LGBTQIA+ couples. It will ensure that Articles 14 and 21 of the Constitution are upheld and LGBTQIA+ couples are provided with the rights they are entitled to, she said.
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A private member’s Bill is a draft legislation introduced by any member of Parliament who is not a minister. Such Bills very rarely see the light of the day unlike a “Government Bill”, which a Union minister introduces. So far, only 14 private member’s Bills have been passed, with six being cleared in 1956 alone.
The Bill lays out the following:
(i) This Act may be called the Special Marriage (Amendment) Act, 2022.
(ii) It shall come into force at once.
2. After Section 4 of the Special Marriage Act, 1954, (hereinafter referred to as the principal Act), the following section shall be inserted, namely:
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“4A. Not withstanding anything contained in this Act or any other law for the time being in force, a marriage between any two persons of same sex may be solemnized under this Act, if at the time of marriage:
(a) in case both the parties are male, each has completed twenty-one years of age; or
(b)in case both the parties are female, each has completed eighteen years of age”,
3. In Section 15 of the principal Act, in clause (a), for the words “husband and wife”, the word “spouse” shall be substituted.
4. In Section 22 of the principal Act, for the words “the husband or the wife”, the words “of the spouse” shall be substituted.
5. In Section 23 of the principal Act, in clause (1), for the words “either by the husband or the wife”, the words “by either of the spouse” shall be substituted.
6. In Section 27 of the principal Act, in clause (1), for the words “either by the husband or the wife”, the words “by either of the spouse” shall be substituted.
15. Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872, or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely:
(a) A ceremony of marriage has been performed between the parties and they have been living together as husband and wife ever since;
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22. When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply by petition to the district court for restitution of conjugal rights, and the court, on being satisfied of the truth of the statements made in such petition, and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.
23. (1) A petition for judicial separation may be presented to the district court either by the husband or the wife,–
(a) on any of the grounds specified in sub-section (1) and sub-section (1A) of Section 27 on which a petition for divorce might have been presented;
27. (1) Subject to the provisions of this Act and to the rules made there under, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent,–
(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse.
In 2018, the Supreme Court struck down Section 377, a colonial-era law that forbids same-sex relations, sparking hopes of equality for the country’s lesbian, gay, bisexual and transgender population. Even after this, they still have a fear of living a normal life in society as they don’t get the equal status and find it hard to adopt children, to find a job and a suitable place in society. Even after Article 15 of the Constitution forbids discrimination on the basis of caste, religion, sex, etc., our society still shows aversion towards them and finds it hard to accept them, mostly in rural areas. Regardless of the constitutional readings, no unambiguous law has been ratified so far to embargo discrimination on the basis of sexual orientation. Regarding employment, Article 15 only covers discrimination from the state or government bodies.
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The Transgender Persons (Protection of Rights) Act, 2019, prohibitions prejudicial discrimination against transgender people in educational institutions and services, employment, healthcare facilities, entrée to the “use of any goods, lodgings, amenity, facility, profit, freedom or opportunity dedicated to the use of the general public or normally accessible to the public,” the right to program, the right to “be located in, purchase, rent or otherwise inhabit any property,” the chance to stand for or hold public or private office, and in government or private institutions.
LGBTQIA+ protesters are inspiring people who have encountered discrimination because of their sexual preferences or gender identity in private employment or other non-state areas to mount challenges in court, looking to test the jurisprudence set by the two rulings. They are also protesting for an obvious anti-discrimination law that would change perception about the community.
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LGBTQIA+ people are also barred from openly serving in the India’s armed forces. In December 2018, member of Parliament Jagdambika Pal (BJP) had introduced a Bill in Parliament to modify the Army Act, 1950, the Navy Act, 1957, and the Air Force Act, 1950, that would permit LGBT people to enlist in the armed forces.
Sule’s Bill is the most comprehensive one introduced so far regarding the LGBTQIA+ community. How much traction will it get is still to be seen. Till now, India does not have an official data on the LGBTQIA+ community, but government estimates that there are about 2.5 million gay people in India.
—By Adarsh Kumar and India Legal Bureau