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Navtej Singh Johar And The Curious Case Of Same Sex Marriages

The Indian Penal Code (hereinafter, the IPC) is the principle legislation dealing with substantive criminal law in India. Various provisions punishing various offences have been laid down under the IPC. One such law was Section 377[1]. The law punished individuals for indulging in sexual relations against the order of nature. The problem with that provision was the absence of the consent clause.

Unlike Section 375 Rape that punishes individual for forceful sexual relations with a woman against her will and without her consent, Section 377 punished anybody for having sexual relations against the order of nature, with or without consent. However, before we move further on this discussion, we need to understand two things viz., against the order of nature and consent.

Consent
Consent is a tricky issue. In various countries and various legislations even consensual sexual relations outside marriage are an offence. In some countries even forcing oneself on your wife is punishable. Hence, consent as the basis for punishing the individual for a sex law varies from country to country and is subjective. However, when we talk in context of India, considering the individual freedom as enshrined under Article 21 of the Constitution, a person shall have a right to indulge in consensual sexual relation until such relation violates the rights of a third person.

This would mean that a husband and a wife shall not indulge in such relations outside marriage. Similarly, if two individuals are entering into such relations with consent then it should not be punishable in law.

That was precisely the issue with Section 377 that it punished individuals for indulging in such relations 'against the order of nature' even when it was with consent. This aspect of consent was finally resolved by the Honourable Supreme Court of India in the judgment of Navtej Singh Johar which shall be discussed later.

Now, a person shall have a right to indulge in such relations wilfully and consensually, even if they are 'against the order of nature'. Let's now look into this aspect of the provision i.e. against the order of nature.

Against The Order Of Nature

Section 377 used a very peculiar term for punishing individuals and that was against the order of nature.
However, what does it really mean? What is natural about sexual relations? God has made human beings for various purposes and establishing sexual relations also has a purpose. That purpose according to every religion and every belief across the world is that such relations are established to procreate, to have children.

Thus, any such physical relation that will not ultimately lead to legitimate children is condemned by all religions unanimously. Hence, obviously since homosexual relations or bestiality in no way can naturally lead to procreation of children, all such relations come under this umbrella of against the order of nature.

Now the next question which arises is why was this punishable? Every single religion or community or society in this world, irrespective of how liberal it may become, has not given up on its core principles. Whether this is good or bad, I leave it for you to decide, however, this is a fact. And all religions irrespective of how different they are, unanimously condemn, oppose and criminalize such relations between individuals.

This was the basis of Section 377 as well that nobody could have imagined back in the 1860s that people in the future will develop such kind of a sexual orientation as well. Even in 1950 when we got our Constitution and we got Article 21 and the right of life and personal liberty, nobody could have imagined that establishing such sexual relations will become a part of that liberty as well. This is exactly the reason why Section 377 remained in existence without any change for so long.

The Case Of Suresh Kumar Koushal And The Beginning Of Recognizing Rights Of Homosexuals

The Universal Declaration of Human Rights (hereinafter, the UDHR) adopted on December 10, 1948 states that All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.[2] 10th December is celebrated as the Human Rights Day. Ironically, on December 11, 2013, a liberating and internationally acclaimed judgment of Delhi High Court was reversed by the Supreme Court after 4 years.

The judgment by the Delhi High Court delivered on 2nd July, 2009[3], though welcomed by the public at large, was much criticized by the legal fraternity, claiming that it was unlawful vide Section 377. The Supreme Court on appeal reversed the decision saying that it was against the erstwhile provision under the Indian Penal Code.[4] However, the problem with the judgment of the Honorable Supreme Court was the defunct provision under Section 377.

The Supreme Court in its judgment categorically specified that this matter shall be decided by the Parliament.
There was much hue and cry about this for many years which was finally put to rest in the year 2018.

The Case Of Navtej Singh Johar

Recently, in Navtej Singh Johar v. Union of India, a Bench of the Honorable Supreme Court of India, headed by the former Chief Justice, Honorable Justice Dipak Misra, read down the colonial law to the extent to which it hampered individual freedoms and rights of the LGBTQ community in this country.

Sexual orientation varies from one individual to the other. A general rule can never be laid down. It's not always that a man is attracted to a woman or a woman is attracted to a man. When Michael Kirby, a former judge of the High Court of Australia and a former President of the International Commission of Jurists, delivered the 2013 Tagore Law Lectures, his theme was 'Sexual Orientation and Gender Identity a new province of law for India'. In 1999, Justice Kirby had made it public that he was homosexual.

Homosexuality though attracts a unique sexual orientation but is certainly not an offence. While most religions condemn it, a secular country is not expected to be driven by religious bindings while making secular laws. Thus, finally in September 2018, the Honorable Supreme Court of India vide its judgment in Navtej Singh Johar v. Union of India[5] struck down portions of Section 377 that criminalized consensual sexual relations between same-sex couples.

The Supreme Court while delivering the judgment observed that when Section 377 was drafted, procreation was considered as the sole purpose of intercourse and any deviation from such kind of sexual relations was thought of as unnatural.[6] But the court explained that 'homosexuality' is no longer 'unnatural' and thus there is no point of covering it under the umbrella of unnatural offences.

Thus, the present law under Section 377 doesn't punish individuals for establishing consensual homosexual relations.

Issue Of Same Sex Marriages

The Honorable Supreme Court of India through its judgment in Navtej Singh Johar has smashed many taboos and upheld individual freedoms to a great extent. However, this judgment has its own flaws as well. In my view it was an incomplete judgment.

The Honorable Supreme Court while legitimizing homosexual relations, failed to recognize and legitimize all such rights that heterosexual couples enjoy. One such was the right of getting a legally registered marriage.

Now when we talk of marriage in Indian context, we need to understand that the law of marriage is governed by the personal laws of every religious community. Hindus, Muslims, Sikhs, Christians, Parsis, all have different laws of marriage, different rules and regulations. However, none of them recognize marriage between same sex couples.

The Indian culture gives huge respect to this institution. As Dr. S. Radhakrishnan observes:
Marriage is not a mere convention but an implicit condition of human society..... It is an adjustment between the biological purposes of nature and the sociological purposes of man.... It is an institution, it is a device for the expression and development of love.[7] It is closely connected with the institution of family.

Marriage is an institution of society which can have very different implications in different cultures. Its purpose and forms may differ from one society to the other, but it exists everywhere. It is the very foundation of a civil society, as regarded by all religions uniformly. Family is the most significant unit of society and marriage is its foundation. Both have a long history of their own.
Among Hindu social heritage, marriage has never been looked at from the materialistic point of view.

The Rigveda itself speaks of the sanctity of the institution of marriage.[8] Ever since, the institution of marriage has attained social and religious sanction. It is a matter of religious duty for Hindus. Hindu shastrakaras have prescribed that girls should marry as soon as they attain marriageable age. A girl who continues to stay in her father's home more than three years after attaining puberty, is called a Vrishala or a sudra, that is a very low type, and the father or the guardian of such a girl is said to be incurring a great sin.

As per Islam, marriage is considered a contract but yet enjoys a high sanctity. When a Muslim marries, he or she is said to have completed half of its deen (religion).

Some of the relevant verses from the Holy Quran are:
And marry those among you who are single (i.e. a man who has no wife and the woman who has no husband) and (also marry) the Salihun (pious, fit and capable ones) of your (male) slaves and maid-servants (female slaves). If they be poor, Allah will enrich them out of His Bounty. And Allah is All-Sufficient for his creatures' needs, All-Knowing (about the state of the people).[9]

And among His Signs is that He created for you wives from among yourselves, that you may find repose in them, and He has put between you affection and mercy. Verily, in that are indeed signs for a people who reflect.[10]

....(Lawful to you in marriage) are chaste women from the believers and chaste women from those who were given the Scripture (Jews and Christians) before your time when you have given them due Mahr (bridal-money given by the husband to his wife at the time of marriage), desiring chastity (i.e. taking them in legal wedlock) not committing illegal sexual intercourse....[11]
Hence, marriage is considered not only a respectable but a sacred institution in all religions. But what shall be the case when religion doesn't recognize a particular relation? Such is the case with homosexual couples as well. No religion sanctions such relations. Thus, it becomes the duty of the State to protect such individuals and recognize their rights which every other relationship enjoys.

The Special Marriage Act, 1954[12] is a law that proves to be a rescue for all such couples who are not granted protection under the personal laws. Until now it came as a blessing for inter-faith couples. However, now it's time for this law or some other special law to protect and legally recognize same sex marriages.

Conclusion
No relationship can survive in a civilized society without the basic and fundamental rights and protections that are needed for life to prosper. There are various rights and protections that a couple enjoys when they enter into the bond of marriage, both religiously as well as legally. Now since religion opposes homosexual relations, it is the duty of the secular state to grant this protection to such couples, more so when their relationship is perfectly legal as per the verdict of the Supreme Court.

End-Notes:
  1. 377. Unnatural offences. Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [1][imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
    Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
  2. The Universal Declaration of Human Rights, 1948, art. 1.
  3. Naz Foundation v. Govt. of NCT, Delhi, 160 DLT 277.
  4. Suresh Kumar Koushal and Anr. v. Naz Foundation, (2014) 1 SCC 1
  5. (2018) 10 SCC 1.
  6. Id., at 19.
  7. Dr. S. Radhakrishnan, Religion and Society (1956).
  8. Rig Veda, Hymn XXXII, Verse 3 (English Translation by R.T. Griffith).
  9. The Holy Quran, Surah An-Nur, Ch. 24, Verse 32 (Dr. Muhammad Muhsin Khan, Translation of the meanings of The Noble Qur'an in the English Language (King Fahd Complex, Madinah, KSA)).
  10. The Holy Quran, Surah Ar-Rum, Ch. 30, Verse 21 (Dr. Muhammad Muhsin Khan, Translation of the meanings of The Noble Qur'an in the English Language (King Fahd Complex, Madinah, KSA)).
  11. The Holy Quran, Surah Al-Ma'idah, Ch. 5, Verse 5 (Dr. Muhammad Muhsin Khan, Translation of the meanings of The Noble Qur'an in the English Language (King Fahd Complex, Madinah, KSA))
  12. Act 43 of 1954.

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