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Same Sex Marriage: Need of the Era

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 civil partnership.

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 couple.

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 as "Shikhandi" 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 violated.
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.

So, Article 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 the law.

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.

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