Gay marriage - it's not about two people being gay: it's about two people who
love each other and who have decided to commit to each other for the exact same
reasons any other couple would get married.
If we talk about marriage, it is a union between two individual (who become and
husband and wife) or we can say that it is the process by which two people make
their relationship, public, official and permanent.
But now the society today tends to stick to what they know and hold on to the
familiar as most of the people consider homosexuality a sin it further weakens
the traditional values essential to our society and this could be the reason
that when any unfamiliar comes along the society resists acceptance, instead
they dismiss the issue by denying its existence. Unfortunately, gay marriage is
one of the issues where society refuses to accept or to deal with it and this
may all because of they don't know how to approach it or for whatever reason the
society has chosen to ban gay marriage.[1]
The parents were the ones who chose who their children are going to marry based
on a person character, family background and therefore same sex marriage is new
to us all.
Same sex marriage (LGBT), also known as gay marriage, is a marriage between the
people of the same sex, either as a secular civil ceremony or in a religious
setting and LGBT citizens in India face many difficulties as society refuses to
accept them, maybe because of the manner they live and since we all are entitled
to many constitutional rights and are also protected by the constitution of the
India but LGBT people they are not entitled to some of the constitutional rights
such as article 14 which talks about Right To Equality Before Law, article 15
which talks about Protection from Discrimination and Article 19 which talks
about freedom of expression and also Right to life.[2]
Facts of the Case:
The central issue of the case was the constitutional validity of Section 377 of
the Indian Penal Code, 1860 (Section 377) insofar as it applied to the
consensual sexual conduct of adults of the same sex in private.
The issue in the case originated in 2009 when the Delhi High Court, in the case
of Naz Foundation v. Govt. of N.C.T. of Delhi[3], held Section 377 to be
unconstitutional.
In 2014, a two-judge bench of the Supreme Court, in the case of Suresh Kumar
Koushal v. Naz Foundation[4], overturned the Delhi HC decision and granted
Section 377 "the stamp of approval".
When the petition in the present case was filed in 2016 challenging the 2014
decision, a three-judge bench of the Supreme Court opined that a larger bench
must answer the issues raised. As a result, a five-judge bench heard the
matter.[5]
The Petitioner in the present case, Navtej Singh Johar, a dancer who identified
as part of the LGBT community, filed a Writ Petition in the Supreme Court in
2016 seeking recognition of the right to sexuality, right to sexual autonomy and
right to choose a sexual partner to be part of the right to life guaranteed by
Art. 21 of the Constitution of India (Constitution)[6].
Among other things, the Petitioner further argued that:
- Section 377 was violative of Art. 15 of the Constitution (Protection from
Discrimination) since it discriminated on the basis of the sex of a person's
sexual partner;
- Section 377 had a "chilling effect" on Article 19 (Freedom of
Expression) since it denied the right to express one's sexual identity
through speech and choice of romantic/sexual partner; and
- Section 377 violated the right to privacy as its subjected LGBT people to
the fear that they would be humiliated or shunned because of "a certain choice
or manner of living."[7]
The Respondent in the case was the Union of India. Along with the Petitioner and
Respondent, certain non-governmental organizations, religious bodies and other
representative bodies also filed applications to intervene in the case.
Issues Raised:
- Was the rationale of the Supreme Court judgment in the Suresh Kaushal
case sound in its understanding of morality as social morality
- Whether Section 377 violates Article 14 and 15 by allowing
discrimination on the basis of "sexual orientation" and "gender identity"?
- Whether Section 377 violates right to autonomy and dignity under Article
21 by penalizing private consensual acts between same-sex persons?
- Whether Section 377 violates the fundamental right to expression under
Article 19(1)(a) by criminalizing the gender expression of persons belonging
to the LGBTQ+ community?[8]
Judgement:
The five-judge Bench (Chief Justice Dipak Misra, Justice Rohinton Nariman,
Justice DY Chandrachud and Justice Indu Malhotra), partially struck down Section
377 IPC, de- criminalizing same-sex relations between consenting adults. The
Court has upheld provisions in Section 377 that criminalize non-consensual acts
or sexual acts performed on animals.
The four judges unanimously cited
fundamental rights violations in reading down Section 377. They found that
Section 377 discriminates against individuals on the basis of their sexual
orientation and/or gender identity, violating Articles 14 and 15 of the
Constitution. Further, they ruled that Section 377 violates the rights to life,
dignity and autonomy of personal choice under Article 21. Finally, they found
that it inhibits an LGBTQ citizen's ability to fully realize their identity, by
violating the right to freedom of expression under Article 19(1)(a). [9]
Justice Malhotra spoke about the fundamental right to health, which flows from
the right to life in Article 21. She pointed out that the stigma associated with
being LGBT forces LGBT individuals to live closeted lives. This, in turn, denies
LGBT individual access to adequate healthcare. She expressed grave concern about
the high incidence of HIV/AIDS and other sexually transmitted diseases in LGBT
communities across India.[10]
Judgment Analysis:
A democratic Constitution like ours is an organic and breathing document with
senses which are very much alive to its surroundings, for it has been created in
such a manner that it can adapt to the needs and developments taking place in
the society. Constitution is a living, integrated organism having a soul and
consciousness of its own and its pulse beats. Thus, we are required to keep in
view the dynamic concepts inherent in the Constitution, and amend our laws in a
way which will cater to the needs of society.[11]
Section 377 of the IPC bears the heading "unnatural offences" and it penalizes
carnal intercourse which is against the order of "nature". Some of the judges,
therefore, asked themselves what was meant by the word "natural". Chief Justice
Misra and Justice Malhotra held that a person's sexual orientation itself is
natural. Justice Chandrachud wrote that there are shortcomings in the conceptual
categories of "natural" and "unnatural", merely because something is natural
does not mean that it is desirable (e.g., death), and just because something is
unnatural (e.g., a heart transplant) doesn't mean that it ought to be
criminal.[12] Keeping this in mind a change was in order and it is necessary to
commend the supreme court on its judgement.[13]
Under the classification test, a law falls foul of Article 14 if it either
classifies people into categories without applying an intelligible differentia,
or if the object sought to be achieved by the law doesn't bear any rational
nexus with the intelligible differentia.
In many spheres, the sexual minorities have been accepted. They have been given
space after the NALSA judgment but the offence punishable under Section 377 IPC,
as submitted, creates a chilling effect.
Two judges found that it violates the right to health, because the
criminalization of homosexual intercourse makes members of the LGBTQ community
hesitate to seek medical advice and that they are therefore more susceptible to
sexually transmitted.[14]
However, Section 377 of the IPC has not entirely been struck down. The judgment
does not advert to the distinction between consenting adults engaging in sexual
intercourse, and sexual acts which are without the will, or consent of the other
party. A distinction has to be made between consensual relationships of adults
in private, whether they are heterosexual or homosexual in nature.
Just like other fundamental rights, the right to privacy is not an absolute
right and is subject to reasonable restrictions. Any restriction on the right to
privacy must adhere to the requirements of legality, existence of a legitimate
state interest, and proportionality.[15]
The mere fact that the LGBTQ citizens constitute a "minuscule fraction" of the
country's population cannot be a ground to deprive them of their Fundamental
Rights guaranteed by Part III of the Constitution. Even though the LGBT
constitutes a sexual minority, members of the LGBT community are citizens of
this country who are equally entitled to the enforcement of their Fundamental
Rights guaranteed by Articles 14, 15, 19, and 21.[16]
Current Scenario on Same Sex Marriage:
India's Supreme Court is hearing the final arguments in a historic group of
petitions to legalize same- sex marriage. There are many cases that have been
bought by the LGBTQ couples and they are being opposed by the government of
Prime Minister Narendra Modi. The main motive of these petitions is, the right
to marry a person of one's own choice should also be extended to LGBTQ citizens
as well. India's government put its LGBTQ population at 2.5 million in 2012, and
more recent global estimates say it could be at least 10% of the country, or
more than 135 million people[17].
The same court granted certain rights to the transgender community in 2014,
declared privacy a Constitutional right in 2017, decriminalized gay sex in 2018
and also expanded provisions for "atypical" families in 2022. A favourable
decision in this case, would make India the 35th country worldwide and the
second place in Asia to allow marriage equality, after the parliament of Taiwan
passed a bill in 2019.[18]
India's socially conservative government is against the legalization of same-sex
marriage, and questions whether the court (as opposed to parliament) has the
right to decide it at all. They say that if legalized, same-sex marriages will
dilute the concept of marriage, which is a stable institution, as per them and
bring in a free-floating system that will be harmful, according to them, to the
social order.[19]
Indian attitudes towards LGBTQ people have grown more tolerant in recent years.
The Pew Research Centre found that 37% of Indian people said homosexuality
should be accepted by society in 2019, a large jump from just 15% in 2014.
Plaintiffs have tried to bring the issue of marriage equality before the
country's top court since 2020. Last year a growing number of petitions to
legalize same-sex marriage made their way to city courts and the Supreme Court,
which decided to bundle them together into the case it's hearing now.
Conclusion:
We are becoming diversely knowledgeable therefore we have to adjust traditions
to match the world we live in today and the knowledge we have and if not adjust
traditions we shall make new traditions. In being able to adjust traditions and
come up with new traditions we shall become more accepting of same sex marriage.
So, if we are denying the basic rights to a considerable segment of our society
then we are deviating from what we promised to us. LGBTQ citizens have their own
individuality as other people have. And it is a stereotypical thought which
prohibits an individual from exercising his/her right and such thought should be
quashed.
The society is not ready to accept the things which they had never
seen, that may be the reason why society is recognizing the LGBT community. But
they do not opt to be what they are and even if they are of different kind, what
is problem in it. Though their relationship does not lead to any reproduction,
but that cannot be a reason to prohibit such type of relationship.
We have to stop and consider this people as they are not doing anything wrong,
they are just being who they are. LGBTQ citizens cannot help the way they feel
and also, they did not choose to be that way, they were born in that way. There
are 13 countries where same sex marriage is accepted and what must be considered
is that each and every one of us have our own feelings and we have the right to
express it until it affects others life.
And by denying same sex marriage we are
discriminating with LGBTQ citizens. We are always enforcing equality in our
society and yet we are not treating LGBTQ citizens equally, by not allowing them
to marry or receive benefits that any traditional couples will receive when they
marry.
References
Statute(s):
Journal(s):
- 'NAVTEJ SINGH JOHAR VS UNION OF INDIA' (Centre for Law and Policy Research,)
- Sakshi Tomar, 'Case Comment: Navtej Singh Johar & Ors Vs Union of India & Ors'
- Arohi Ambade 'Case Summary: Navtej Singh Johar v Union of India thr Secretary Ministry of Law and Justice' (LawLexorg, 2020)
- Kumari Manisha Gupta, 'Navtej Singh Johar & Ors v Union of India: Interpreting Section 377 of IPC 1860' [2021] 4(3) International Journal of Law Management & Humanities
- Shraddha Chaudhary, 'NAVTEJ JOHAR V UNION OF INDIA: LOVE IN LEGAL REASONING ' [2019] 12(Rev 3-4) NUJS Law Review
Website(s):
- Rachel Treisman, 'Will India legalize same-sex marriage? Its top court hears arguments this week' (NPR org, 2023)
- Samanwaya Rautray, 'Same sex marriages cannot be given legal sanction: Government ' (The Economic Times, 2021)
- Ishank Bangarwa, 'Analysis: Same-Sex Marriage in India' (Legal Services India,)
- Raj Krishna, 'Navtej Singh Johan and others v Union of India: Supreme Court's moment of atonement' (Time of India, 2022)
- Global Freedom of Expression Columbia University
End-Notes;
- Kumari Manisha Gupta, 'Navtej Singh Johar & Ors v Union of India: Interpreting Section 377 of IPC 1860' [2021] 4(3) International Journal of Law Management & Humanities
- Shraddha Chaudhary, 'NAVTEJ JOHAR V UNION OF INDIA: LOVE IN LEGAL REASONING ' [2019] 12(Rev 3-4) NUJS Law Review
- WP(C) No.7455/2001
- CIVIL APPEAL NO.10972 OF 2013
- Arohi Ambade , 'Case Summary: Navtej Singh Johar v Union of India thr Secretary Ministry of Law and Justice' (LawLexorg, 2020) accessed 21 April 2023
- Global Freedom of Expression Columbia University
- Sakshi Tomar, 'Case Comment: Navtej Singh Johar & Ors Vs Union of India & Ors' [20195] 5(2581-5504) Http://wwwpenacclaimscom/
- Raj Krishna, 'Navtej Singh Johan and others v Union of India: Supreme Court's moment of atonement' (Time of India, 2022) accessed 21 April 2023
- SUPRA 5
- SUPRA 8
- (2018) 10 SCC 1; Raj Krishna, 'Navtej Singh Johan and others v Union of India: Supreme Court's moment of atonement' (Time of India, 2022) accessed 21 April 2023
- Re: Same Sex Marriage, [2004] 3 S.C.R. 698
- Ishank Bangarwa, 'Analysis: Same-Sex Marriage in India' (Legal Services India,) accessed 21 April 2023
- SUPRA 8
- SUPRA 6
- 'NAVTEJ SINGH JOHAR VS UNION OF INDIA' (Centre for Law and Policy Research,) accessed 21 April 2023
- Rachel Treisman, 'Will India legalize same-sex marriage? Its top court hears arguments this week' (NPR org, 2023) accessed 21 April 2023
- Id 12
- Samanwaya Rautray, 'Same sex marriages cannot be given legal sanction: Government ' (The Economic Times, 2021)
Written By: Niharika Kohli,
3rd Year
BBA LL. B (Hons.) (Corporate Law)
School of Law
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