ABSTRACT
Same -sex marriage is a new dimension of social realities in ,the Indian society which requires the attention of public at large. Homosexuality is a concept which is continued right from the Vedic period and was having a social acceptance until section 377 of the Indian Penal Code was introduced which made the situation worse for the LGBTQ resulting in the persecution of the entire community. Section 377 led to ostracizing the entire community by majoritarian policies which led to the decline of the basic human rights. The verdict of Supreme Court in Navtej Singh Johar v. Union of India in the year 2018, finally led to the guarantee of privacy and dignity to the homosexuals. Same sex couples faced multiple problems as the judgement was only half way ticket to the destination, which allowed them to stay together but never provided recognition to their relationship . Majority of these couples face social exclusion due to the existence of homophobia even today. It is now the time to provide for better protection to the rights of same sex couples by recognising their marriage and keeping aside the Indian ethos and the doomed customary beliefs which has left the entire society in the hands of majoritarianism and intolerance.
KEYWORDS: Homosexuality, same-sex marriage, legal recognition, Section377, Decriminalise
INTRODUCTION
The term LGBTQ+ to a wide spectrum of people who fall outside the heteronormative understanding of gender and sex. There is no conclusive definition of the term and therefore the acronym is often used with ‘ + ‘ that the collective is not exhaustive. The term though , stands for lesbian,gay, bisexual , transgender and queer. It refers to both aspects of sexuality and gender. While gay ,lesbian and bisexual are sexual preferences of persons; transgender is a gender who does not identify with the binary of male and female genders. The term ‘queer’ is broadly used to signify the ‘queerness’ of the collective. Other terms like intersex ,asexual etc, all fall within the term .It is a complex term which requires an understanding of gender and sexuality as aspects of human life. The heteronormative standard which has become the default are questioned by this collective is aimed towards identifying their own identities in the spectrum of gender and sexuality.
The Indian legal system based on the English law, had by law oppressed sexual minorities under the now repealed Section 377 of the Indian Penal Code .The clause which defined unnatural offences applied to members of the LGBTQ community and created an environment of fear, oppression and violence by society and also by the police force. The decision of the supreme court resulted in a major step forward towards the normalising the ideas of sexual minorities in India and has provided a legal foundation for the community. Transgender persons are in a better position owing to their recognition as the third gender, though the legal enactment drafted for them has been subjected to much criticism. Sexual minorities have been systematically oppressed and have been forced to live a life in anonymity. There is a clear lack of understanding and discrimination may be observed in many different forms; namely transgender persons are not included in social organisations and are denied work or employment ; there are no guaranteed rights of marriage, reproduction or adoption/maintenance for same sex couples etc among others. However ,even after the decriminalisation ,social rights are denied and one among them which is before the courts in India, is marriage rights of same sex couples .This is the obvious next step for the community to ensure a normal life but the consistent opposition by the government has made it extremely challenging.
RESEARCH METHODOLOGY
This paper is of descriptive nature and research is based on secondary sources for the deep analysis of recognition of same -sex marriages in India. Secondary sources of information like newspapers, journals and websites are used for the research.
REVIEW OF LITERATURE
Human Sexuality is complicated . Accepting the distinction desire, behaviour and individuality affirms the complex nature of sexuality. The fact that these dimensions may not always be consistent in individuals that the issues are complicated. There are various reasons associated with the stereotype and social stigma , and the failure to distinguish desire, behaviour, and identity estimating the prevalence of homosexuality in India has been difficult topic to deal with.
‘’Same -Sex Relationships and Marriage in India :The Path Forward” Article by Saif Rasul Khan has shed some light on the dissenting voices of the Indian Society
HOMOSEXUALITY IN ANCIET INDIA
In India, homosexuality has a long history. Homosexuality can be traced back to the Rig-Veda period 1500 BC. The harem’s (young boys) used to be kept by Hindu nobles and Muslims Nawabs as described in the Kamasutra. However, with the advent of Brahmanism and, later , British Colonialism, these experiences became correlated with hatred.
As they fueled patriarchy’s dominance, the Aryan invasion began to suppress homosexuality. Homosexuals were punished, beaten, and tortured in a variety of ways, both physical and mental. This eventually gave birth to homophobia, which evolved over time. From there, homosexuality began to dwindle.
It has long been considered a taboo in India. Most personal laws define marriage as a sacrament and the union of two souls relationships are viewed as morally wrong and in violation of tradition and religious beliefs. Gay and lesbian marriage are considered unholy because marriage is a personal matter governed by one’s religious faith. People in India commonly assume that negative influence from other countries, However, it cannot be only considered as a Western practice, because our ancient scriptures and literature reflect a similar concept.
SAME-SEX MARRIAGE AND CONSTITUTION
Article 16 of the Universal Declaration of human rights talk about the right of men and women who have attained majority have the right to marry a person of his/her own choices regardless of religion, caste, and nationality.
Constitution of India never finds mention of right to marry as a fundamental right expressly but, this right also have evolved over time with the help of judicial pronouncements.
Hon’ble Supreme Court in the case of Lata Singh v. State of Uttar Pradesh [i]held right to marry as an important component fundamental rights under Article 19 and 21. Thus, freedom of a person to marry another person of his choice is a fundamental choice and thus cannot be taken away from societal pressure. The Supreme Court also held that the freedom of choice is a fundamental and the only parameter to fulfill to marry a person of his/her own choice is to attain the age of majority. If the marriage is taking place without the consent of parents due to any reason ,then in such a case the parents all the rights to distance themselves from the boy or girl but have no rights whatsoever to instigate, abuse or threaten them.
Similar to these observations the rights of the same-sex couple to be given recognition of their bond by the way of marriage can be debated upon . As discussed earlier, the marriage is considered no matter of procreation but a bond of love and affection. Therefore , it is now the right time to move beyond the gender specific laws and to bring about neutrality in the laws and give a respectful place to the sexual orientation . The recognition of same-sex marriage revolved primarily around three fundamental rights which are as under:
- Article 14 Right to Equality
Article 14 of the Constitution guarantees ‘equality before law ‘ which can be classified into two groups i.e.., Equality before law and Equal Protection of law
Article 14 of the constitution forbids class legislation; it does not forbid reasonable classification for the purposes of legislation. In considering reasonableness from the point of view of Article 14, the objective for such classification is to be considered. If the objective is illogical unfair and unjust necessarily the classification will have to be held as unreasonable . Therefore we find unreasonableness , there is a denial rule of law .The exclusion of same sex couple under the Marriage Legislation was justified to be reasonable classification until the judgement in the Navtej Singh Johar’s Case where the dignity and privacy was guaranteed as a laws and the Special Marriage Act is antithetical to the constitutional morality and should no longer fall under reasonable classification . Rule of Law requires that no person shall be subjected to harsh, uncivilized, or discriminatory treatment even when the object is securing of paramount exigencies of law and order .Thus even the non-existence of a lew for the protection of the rights of a miniscule fraction of the society itself results into inequality before the law as there isa need of special legislation for that special community.
- Article 19 Freedom of Expression
Article 19 of the Constitution is the fundamental rights which is granted to the citizens of the country. It is well established principle under constitutional law that fundamental rights are the bundle of rights which gives humans a life, more than a mere animal existence. Article 19 is one such right which guarantees the citizens a proper way of living together . Non recognition of the same sex marriage also violates these fundamental freedoms guaranteed under article 19 of the constitution. The primary rights which are violated is Article 19 (1)(a) i.e., ‘’right to freedom of speech and expression ‘’ the bond which the same sex couple ‘s share is also a bond of love and affection, but they are unable to express the same in front of the public at large as the non-recognition of marriage remains to be a curse for the social acceptance. Considering the psychological dimensions of the same sex couples and heterosexual couples , we can draw that the bond of love ,compassion and responsibility is shared in common which will also help them to achieve the common goals and benefits such as health, psychological benefits, and other benefits once the legal recognition is granted to them by the state.
The Fundamental Right under Article 19 (1)(e) i.e., ‘’right to reside and settle in any part of the territory in India’’. The majority LGBTQ Community which has revealed their identity to the public at large faces the problem of residing in the society due to homophobia and social unacceptance and the situation is even worse for the same -sex couple who are citizens of India and even then, they are not guaranteed the fundamental rights guaranteed under Article 19 of the Constitution.
- Article 21 Right to life and personal liberty
Article 21 guarantees right to life and personal liberty to every individual, where the right to marry is also covered as a fundamental right. When we see the right to marry in light of the petition moved by the same sex couples then in such a case ,we can draw that the same sex marriage also falls within the ambit of the fundamental rights under Article 21 . However, the Centre had an opposing view to this and stated that fundamental freedoms guaranteed under Article 21 is assured ‘’except according to the procedure established by law’’. The word ‘law’ and ‘procedure’ is of utmost importance to lay down a faultless ground for the same-sex marriages. .Law means any law enacted by the parliament or any ordinance or any other law which falls within the ambit of Article 13 of the Constitution. In this regard , we can say that the law covers all the important legislations such as Special Marriage Act 1954, the Hindu Marriage Act 1955, the Foreign Marriage Act 1969 etc.
The word Procedure is important as it relates with the application of these laws, the Supreme Court in the case of Kartar Singh v. State of Punjab held that the term procedure mentioned under Article 21 must be ‘’right, just and fair ‘ and should not be of an afflicting character. The similar view was held by the Supreme Court in the case of Olga Tellis v . Bombay Municipal Corporation that ‘’ the procedure prescribed by law for the deprivation of the right conferred by Article 21 must be fair and reasonable ‘’. The Legislations named above are of an to the right to marry each other and such laws shall be thus amended in such ways so that they become permissible towards allowing the same -sex marriage.
The seeds of transformation are always to be sown from time to time in order to make a democracy more vibrant and a majoritarian ethos not be an acceptable as a constructive argument while adjudicating the rights of the minority.
‘’ Procedure which is unjust or unfair in the circumstances of a case ,attracts the vice of unreasonableness ,thereby vitiating the laws which prescribes that a procedure and consequently, the actions taken by it’’
The heterosexual bias is commonly seen in the Indian Context and the express recognition of the same-sex marriage is still awaited for the nod of the legislator which is unlikely to happen in the near future . Thus, the same sex couple have no other choice but to knock the door of the Supreme Court to preserve their fundamental rights,
UNDER THE HINDU LAW
The Hindu Marriage Act governs the marriage and related aspects like divorce etc, of any two individuals belonging to the Hindu Religion . The Marriage Act very specifically states that at the time of marriage the bridegroom must be of twenty -one years of age bride of eighteen years of age .A similar provision is made in the Christian Marriage Act using the term man and women .Almost every Indian Personal law considers marriage as union of heterosexuals .However ,same sex marriages are not expressly prohibited Hindu Marriage Act . In order to recognise them under the personal laws few approaches that can possibly made are as follows:
- Existing laws can be interpretated so as to allow same sex marriages.
- LGBT (lesbian, gay, bisexual, and transgender) can be interpretated as a different community , the customs of which permits same-sex marriages
- Interpretating the Act in such a manner so as to allow same -sex marriage ,if not then it would be unconstitutional.
- Lastly, make relevant amendments in the Act itself.
UNDER SPECIAL MARRIAGE ACT
The Special Marriage Act,1954 allows for a special type of marriage between parties irrespective of their faith and religion who don’t wish to be bound y their personal laws.
An alternative which ought not to incite religious hatred is make amendment in the Special Marriage Act to facilitate same-sex marriages. Marriages under this Act doesn’t require religious rites and practices to be performed for a valid marriage unlike marriages under Hindu Marriage Act.
However , the current form of the Act is only applicable to heterosexual couple as it describes the age criteria by using words such as ‘’male ‘’and ‘’female’’ . To incorporate homosexual marriages under the Act as amendment to Section 4(c) is required or it may add a specific provision to expressly allow the same. Meanwhile , amendment is the best option it may prove difficult because of the existing opposition by the BJP Government. While the Congress and CPI(M) both included their de-criminalisation in their manifestos for the Lok -Sabha elections, the BJP was clear in its support of the judgement – The ruling party that views homosexuality is an unnatural Act that cannot be supported .
The decision of Naz Foundation stressed on article 15 of the constitution which prohibits discrimination on the ground of caste , race, sex, religion and place of birth .The court observed that the term “sex” in Article 15 against homosexual couples if the legislation and personal laws prohibited them based on their sexual orientation.
Hence, it’s clear that if Special Act Permitted same -sex marriages , an argument could have been made . However , the Suresh Kumar Koushal v. Naz Foundation’s decision may be used to argue that Special Marriage Act is constitutional as it was enacted after constitution came into force . After the Supreme Court decriminalised section 377of Indian Penal Code, there have been significant instances where people of homosexual committee are coming out to stand and demand their rights and status . In the case of Shakti Vahini v. Union of India [ii]And others the court held that right to choose a partner is a fundamental right.
Hence, there is not even a single reason as to why same -sex marriages shouldn’t be allowed other than lack of capacity to understand the needs of same-sex couples and blind prejudice. There is significant miscarriage on the government’s part as it is unbale to bring desired amendments in the existing laws nor it has enacted a separate legislation to address these issues.
JUDICIAL REVIEW OF LGBTQ RIGHTS IN INDIA
A Judicial analysis of LGBTQ rights in India reveals while the legislature has been on the backfoot of this matter, the judiciary has been quite proactive in the last few years . Specifically in the last decade, many important judgements were decided by the Supreme Court which paved the way for recognition of basic rights of this marginalised group. The failure of the lawmakers in this regard reflects the conservative nature of the parliament which had to be addressed by a liberal judiciary.
The following are some of the most prominent judgements of the Supreme Court on this subject are as follows
Naz. Foundation v. Government of NCT Delhi[iii]
In this Landmark case , The Delhi Court declared Section 377 of the Indian Penal Code as unconstitutional. Based on a Public Interest Litigation filed by NGO , the judgement paved way for the legal review of the British era Law. The Court declared it to be in violative of Article 14, 15 and 16 (all rights around the concept of equality) of the Constitution of India.
NALSA v. Union of India[iv]
This case came in the aftermath of the criticised judgement in Suresh Kumar Koushal v. Union of India . In Suresh Kumar, the Supreme Court re-criminalised Section -377 ,which was decriminalised in Naz Foundation .The National Legal Services led the charge towards raising relevant questions in favour of the transgender community. This judgement declared transgender persons as third gender. A comprehensive set of guidelines , protecting the rights and freedoms of the transgender community, was laid down in the judgement . Subsequent to that , legislative developments followed to provide a clear statute that shall forward their rights .There were extensive debates and versions of law presented which culminated in 2019 with the Transgender( Protection of Rights ) Act ,2019. While the law is necessary and does have some positive aspects , it has a major issue i.e., of administrative interference by requiring each person would have to be recognised as ‘transgender’ on the certificate of identity issued by a district magistrate . This is a major issue considering the sensitivity of the subject.
Justice(Retd.) K.S Puttaswamy v. Union of India[v]
Granting the right to privacy as a facet of Right to Life and Liberty , Artilcle 21 , this judgement held that privacy is an integral part of a human’s life and that it extends to all individuals ,notwithstanding gender and sex . In the judgement ,Justice Chandrachud observed that the LGBTQ community should be entitled the right to privacy , particularly autonomy and freedom from interference from the state . A special observation was made in context of the right to choose partners of one’s own choices ,sexual freedom and autonomy. The Court observed that “ The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Article 14 (right to equality), Article 15(discrimination on grounds of sex) and Article 21 (right to life and personal liberty)
Navtej Singh Johar v.Union of India[vi]
This judgement decriminalised homosexuality in India by reading the infamous Section 377. Striking down the section to the extend that it criminalised consensual intercourse between two consenting adults , the judgement held that the section violated Articles 14,15,16 and 19 (1)(a) of the Constitution. The right to live with dignity, the freedom to autonomy and choice is personal life were recognised ,drawing inspiration from the Puttaswamy judgement .
Abhijit Iyer Mitra Case[vii]
The matter pertains to the question of recognition of same-ex marriages under the Hindu Marriage Act and the Special Marriage Act in India. The argument forwarded by the petitioner is that with the recognition of same-sex relationships consequent to the decriminalisation ; the state should be responsive to the cause and also conform to the international standard and conventions that India is a signatory to . Contradicting this argument ,Solicitor General Tushar Mehta argues that the term ‘spouse’ under hind law can only include male and female. And that such judicial interference will cause complete havoc with the delicate balance of personal laws.’ The central Government stated that the decriminalisation of section 377 did not automatically mean that such relationships would be entitled the right to marry. Referring to the Indian Traditions and that marriages are based on rituals ,ethos, and social values ,marriages have a spiritual as aspect to it and thus such same-sex marriage4s rights cannot fall within the purview of the judicial adjudication; but it is a matter for the government and legislative to review and determine.
CONCLUSIONS AND SUGGESTIONS
It is time to acknowledge that exists a community within us conform to a different sexual preference than heterosexuals and that sexual preference is only one aspect of their existence. They are as humans as any other heterosexual human being . Social engagement aimed at towards inclusion should be the focus. This should be normalised and the Idea of shame should be eradicated. There is no need to be offended by one’s choice of sexual partners it is a personal preference. A clear statute can be extremely effective not only in bringing a sense of uniformity in legal protection in relation to social, economic, and cultural rights but it will surely provide an avenue to ensure justice. A legislative enactment will empower them to question instances of abuse, violence and discrimination that will give them a voice which is critical
Legality of same-sex marriages can be achieved using either of the following approaches:
- Interpreting the current legislation in order to legalise partnership unions of same genders lawfully.
- Defining the LGBTQ+ culture as a separate category and whose practices provide for relationships with the same genders.
- To legalise marriages between the same genders, Special Marriage Act, 1954 can be amended.
The following suggestions can be taken into account :
- Anti-discrimination Law: The LGTBQ+ community needs an anti-discrimination law that empowers them to build productive lives and relationships irrespective of gender identity or sexual orientation and places the onus to change on state, society and the individuals also.
- Elimination of Distinctness: The introduction of same-sex marriage would help reduce these forms of prejudice against LGBTQ+ people because it would eliminate the official “otherness” status of LGBTQ+ people.
- Full Scope of Rights: Once members of the LGBTQ+ community “are entitled to the full range of constitutional rights”, it is beyond doubt that the fundamental right to marry a person of one’s own choice has to be conferred on same-sex couples intending to marry.
- Creating Awareness and Empowering LGBTQ+ Youth: An open and accessible forum is needed so they feel recognized and comfortable sharing their feelings.
- Platforms like Gaysi and Gaylaxy have helped carve out spaces for LGBTQ+ people to interact, share and collaborate.
- The Pride Month and Pride Parade Initiative is also a good step in this direction.
DEVYANI SAHU
AMITY UNIVERSITY ,KOLKATA[viii]
[i] Lata Singh vs State Of U.P. & Another on 7 July, 2006
[ii] Shakti Vahini vs Union Of India on 27 March, 2018
[iii] Naz Foundation vs Government Of Nct Of Delhi And … on 2 July, 2009
[iv] National Legal Ser.Auth vs Union Of India & Ors on 15 April, 2014
[v] Justice K.S.Puttaswamy(Retd) vs Union Of India on 26 September, 2018
[vi] Navtej Singh Johar vs Union Of India Ministry Of Law And … on 6 September, 2018
- [vii] Abhijit Iyer Mitra vs Union Of India & Ors on 3 February, 2022
Referred Websites
https://www.legalserviceindia.com/legal/article-8025-analysis-same-sex-marriage-in-india.html
- https://www.drishtiias.com/loksabha-rajyasabha-discussions/perspective-legalising-same-sex-marriage