Even after the judgment passed on 6th September 2018, in which the Supreme
Court of India decriminalized homosexuality by declaring Section 377 of the
Indian Penal Code unconstitutional. The court unanimously ruled that an
individual's autonomy, intimacy, and identity are protected fundamental rights.
The LGBTQI Community in India faces legal and social difficulties. Sexual
activity between the same genders is legal but they cannot marry or obtain a
Marriage is a union of two people that gives you certain rights; property
rights, child custody rights, which these people don't have. There is no law in
the Indian Constitution which speaks for the marriage rights of a same-sex
So, the question here arises is:
- are the fundamental rights of the LGBTQI Community protected?
Well, if we go through the latest news the answer is quite
clear. A big NO!
Homosexuality: a mental illness?
According to Indian society, homosexuality is a mental disorder. But, it is
recognized as a normal variant of human sexuality much like heterosexuality and
bisexuality by the Indian Psychiatric Society. Also, it was removed from the
list of psychiatric disorders by the American Psychiatric Society and The
International Classification of Diseases of the World Health Organization in the
year 1973 and 1992 respectively.
To dig in more, India's remarkable history and monuments such as The Khajuraho
Temples are famous for their erotic sculptures contain several depictions of
homosexual activity. In Mahabharata too, multiple characters change gender such
who was born female but identifies as male and marries a woman.
It was only with time; homosexuality is seen as being immoral and sin.
Still today most of the LGBT people in India remain closeted, fearing
discrimination from their families, who might see homosexuality as shameful.
Reports of honor killings, attacks, torture, and beatings of members of the LGBT
community are not uncommon in India. Discrimination and ignorance are
particularly present in rural areas, where LGBT people often face rejection from
their families and forced opposite-sex marriages.
Violation of Fundamental Rights
Deep inside we all know that despite the landmark judgment passed regarding
section 377 of the IPC, the fundamental rights of the LGBTQI Community are being
Their, Right to Equality (Article 14), Right against Discrimination (Article 19)
and Right to Privacy (Article 21) are being affected. The proof for the same is
that there is no specific law or act which gives validation or recognition to
same-sex marriage and a proper criterion to bring grievances of the LGBTQI
Community in the eyes of law.
Right to Equality (Article 14):
Equal protection of law means equal subjection
of all persons to law and amongst equals the law shall be equal and equally
administered. Interpreting the above statement, we cannot say that the LGBT
community is being treated equally to that of common men and women belonging to
the heterosexual group, as they enjoy the right of recognized marriage and other
such rights arising out of such wedlock. There are many such couples who because
of impotency cannot give birth to their child however such shortcoming is not
stopping them from either starting a meaningful life without a child or to go
for adoption and thereby augmenting their family horizon.
An ability, desire, or
promise to procreate is not and has not been a prerequisite for a valid marriage
in any Marriage law in India. Hence, denying the recognition of marriage on the
grounds of inability to procreate is irrational and arbitrary. So why is it that
the members of the LGBTQ community are being denied from having their marriage
recognized and protected on arbitrary grounds mentioned above? The
classification being unreasonable and arbitrary violates their fundamental right
of equality before law enshrined under Article 14.
Discrimination By State (Article 15(1) ):
Article states that -The State shall
not discriminate against any citizen on grounds only of religion, race, caste,
sex, place of birth or any of them.‖ The Supreme Court in the case of National
Legal Services Authority (NALSA) v. Union of India &Ors
, decided for the
recognition of the transgender as a third gender apart from male and female and
also to provide necessary benefits to the socially and economically backward
class. After recognition of the member of a transgender community as a third
gender, the non-recognition of their marriage can be seen as discrimination on
the grounds of sex and is a violation of Article 15(1).
Right against Discrimination (Article 19):
Article 19(1)(a) states that ―All
citizens shall have the right to freedom of speech and expression. In this view, NALSA(Supra) case has also been strongly pressed into service to emphasize that
the said decision spells out that the right under Article 19(1)(a) includes
one's right to expression of his/her self-identified gender which can be
expressed through words, action, behavior or any other form.
19(1)(a) includes the right to express their free choice of life partner with
whom they can have a fulfilling and meaningful.Non-Recognizing their marriage is
the reason why, LGBT people are unable to express their sexual identity and
orientation, through speech, choice of romantic/sexual partner, expression of
romantic/sexual desire, acknowledgment of relationships, or by any other means.
Since same-sex marriage is not safeguarded by law so they are lacking the
confidence to enter into such a relationship.
Right to Privacy (Article 21):
The nature of marriage is that, through its
enduring bond, two persons together can find other freedoms, such as expression,
intimacy, and spirituality. This is true for all persons, whatever be their
sexual orientation. Hence denying this right to choose a life partner as per a
person's wish and accord is a gross violation of the right to life enshrined
under Article 21 of the Constitution. Since the constitutional guarantee of
choice of partner extends to the LGBT persons as well, the denial of recognition
of same-sex marriage violates the right to life and personal liberty enshrined
under Article 21 of the Constitution.
Like choices concerning contraception,
family relationships, procreation, and childrearing, all of which are protected
by the Constitution, decisions concerning marriage are among the most intimate
that an individual can make. Hence violating the very basic liberty of entering
into marriage with the individual of one's choice is grossly unconstitutional.
The non-recognition of same-sex marriage is the reason for further depriving the
members of the LGBT community of the rights arising out of a lawful marriage
like the right of adoption, inheritance, and maintenance.
After the landmark judgment of N S JOHAR & ORS. V. UOI (Supra), where Sec. 377
of the IPC was struck down to the extent that it criminalizes consensual sex
between two adults of the same sex, it is the appropriate time to apply the
principle of transformative constitutionalism and doctrine of progressive
realization, so that the rights available to the members of the LGBTQI community
can be expanded and given a new dimension by recognizing their marriages under
Hence irrespective of the sexual orientation the State should expand
this right to all couples so that the members of the LGBTQI community can live a
complete, meaningful, and fulfilling life with dignity by entering into valid
and recognized marriages under the protection of the constitution.
We live in the 21st century and it is the time to break free from shackles of
orthodox and embrace progressive law like the other common law nations. There
should be a law for these people to legalize their relationship and which can
protect them from any kind of injustice. They should be treated as equal as
heterosexuals. This is the need of the era to support gender equality and the
fundamental rights of each citizen of our country including homosexuals.