In the Indian Penal Code of 1860, which was based on the British law,
consensual sex was not considered an offence, even without a matrimonial
relationship. On the other hand, sexual activity between partners of the same
sex, including that with their free consent, was made an offence (section. 377).
In the Naz Foundation case 2009, Delhi High Court judge AP Shah held that the
outdated IPC provisions, to the extent they covered consensual sex, were Ultra
Vires to the constitution of the present day. The Apex court in the Navtej Singh
Johar case struck down the 158 years old law on homosexuality that made carnal
intercourse against the order of nature a criminal offence. The court overruled
its previous judgement given in the Suresh Kausal case and declared section 377
as unconstitutional as it violates Articles 14,15,19,&21 of the constitution.
Though the Supreme Court decriminalizes homosexuality but does not give any
legal recognition to them. The demand for its legal recognition was increasing
day by day. Now it is before a constitutional bench of the Supreme Court. The
central government has opposed it saying that it would cause "complete havoc" in
society. Society does not in a position to accept same-sex marriage, as it
consider it against the nature and values of the nation. The government's stand
is crystal clear as no personal law also recognizes same-sex marriage, only
heterosexual couples get valid legal recognition under personal law.
This non-recognition of same-sex marriage seems discriminatory now a day.
Earlier there were very few cases of it, but now it's increasing day by day, so
to protect their right and get other benefits their legal recognition is
necessary. The government's contention that society will not accept this is very
vague, as in the past the Special Marriage Act is passed to give protection and
recognition of inter-faith or inter-caste marriage.
As it is a matter of Societal Morality, the government should come up with the
proper legislation on this and compared with other countries, there are almost
about 32- 34 countries that have recognized same-sex marriage. This amounts to
1.25 Billion people (17% of the World Population).
The law of India does not stop homosexual partners from living together as a
family on mutual consent, but due to a lack of legal recognition, they face much
discrimination. There are cases where they are forcefully separated by family
members or society. So to give them legal protection there should be special
laws for the homosexual union.
We have a law called the Transgender Persons (Protection of Rights) Act 2019,
which can be suitably amended to incorporate in it the necessary provisions for
the regulations of homosexual unions and the protection of mutual rights and
obligations of partners in such unions. As these are special categories
different from the especially predominant norms of heterosexual unions and
should be governed by a special law.
Award Winning Article Is Written By: Mr.Vishnu Kant, 2nd year, Campus Law Centre, University of Delhi
Authentication No: AP311219443803-22-0423