Supreme Court’s decision to refer to constitution bench The issue of giving legal recognition to same-sex marriages can be seen as an important step towards ensuring gender equality, despite fears that it is encroaching on the legislative domain. The petitioners before the court see the idea of legalizing same-sex marriages as a natural corollary of the 2018 judgment that decriminalized homosexuality. However, Sarkar argues that there is no need to depart from a heterosexual understanding of marriage. And if there is to be any such change, it must come from the legislature. The question before the Court is whether it should interpret provisions of marriage laws in India, particularly the Special Marriage Act, 1954, which allows marital union between same-sex couples. The Act allows marriage between any two persons and is used by those who are unable to register their marriage under their respective personal laws. The central government has argued that decriminalizing consensual relationships between adults of the same sex removes the stigma attached to homosexuality, but does not confer the right to marry. and that the State is entitled to limit its recognition to marriages involving heterosexual couples. It claims that there is no discrimination in excluding same-sex couples from the definition of marriage.
In terms of the criterion of equality, the central question is not very complex. It may be held that any civil rights available to married heterosexual couples should not be denied to those who are of the same sex. Contingent consequences on issues of property and succession cannot create insurmountable difficulties. The Centre’s other argument against recognizing same-sex marriages, the enforcement of religious norms and cultural values, is weak and insufficient. It is futile to argue that it will undermine trust or shake social values. The mere fact that many people regard marriage as a sacrament or a sacred union is not sufficient to deprive the union of people of the same sex of equal status or to undermine its essential character as a social and economic contract. . Whether the measure should be in the form of recognition of same-sex marriages, and if so, whether it should be through judicial intervention or legislative action, is the question. That the legislature should be involved in bringing about far reaching changes affecting the personal laws of all religions is indeed an acceptable proposition. A responsible government that wants to take it as a matter of policy and not give room to the courts, will act on its own to consider the right of any two people to marry or form a family, regardless of gender . Legislative inaction on burning social issues would be justified and would invite judicial intervention.