SAME SEX MARRIAGES AND THE INDIAN CONSTITUTION.

April 30, 2023by Primelegal Team0

Homosexuality has established its presence in India since the ancient times dating around 1500 BC. The Manusmriti also holds reference to same sexual relations among individuals of same sexes. In the temples of Khajuraho, there are images of women erotically embracing other women and men displaying their genitals to each other. Scholars have generally explained this as an acknowledgement that people engaged in homosexual acts. Fluidity in terms of gender in reference to yakshas can be traced in ancient Indian texts. However, as times progressed, the liberty and expression practiced and societal acceptance of the same turned increasingly rigid. With †he Vedic age and the onset of colonization, homosexuality was termed as a ‘social evil’ needed to be eradicated from the society. In perspective of the contemporary times, homosexuality has knocked the doors of the country again, pushing the society to unearth its cultural roots. However, there is still a long path to trace for its acceptance, in law and the human conscience. Societal standards and stigma make an individual’s sexual orientation a matter of shame, or even worse, a state of mental illness.

While stating this, an equilibrium must be maintained between the ethos practiced by the society and the rule of law. This path is extremely fragile and sensitive in lieu of the administrative and legal recourse adopted by the country. The fraternal fabric and unity are the backbone of India. It is thereby essential to lay emphasis on the fact that laws can make their way in form of statutes, but acceptance by the society holds a greater importance. This acceptance cannot be thrusted on individuals until there is a change in perspective, as laws in this regard will find their way in bulky books and opinions and editorials but there will be societal inhibition and discrimination against certain individuals.

IMPORTANCE OF FUNDAMENTAL RIGHTS: (1)

-ensure human dignity

-enforceable against the state on violation

-safeguard the liberties of the citizens

-prevent autocratic action of the government

-derived by the fundamental law of the land

-essential in establishing equality

-essential in establishment of reservation and positive discrimination

-protects an individual’s right to a dignified life

-protects against exploitation and forced labor

-essential to secure religious rights and conscience

-essential to secure freedom of namely speech, expression, assembly, association, movement, residence, profession

NAVTEJ SINGH JOHAR V/S UNION OF INDIA (WRIT PETITION (CRIMINAL) NO. 76 OF 2016): (2)

The Supreme Court struck down the 158 years old law on homosexuality that made carnal intercourse against order of nature a criminal offence. This was a landmark judgement in terms of right to equality of the LGBTQ community, robbed by the Victorian era law.

In this particular judgement, the Court overruled its previous decision in Suresh Kaushal case on the grounds of violation of articles 14, 155, 19, 21 of the Constitution.

Bench:

-Honorable Mr. Justice Dipak Misra (CJI)

-Honorable Mr. Justice A.M. Khanwilkar

-Honorable Mr. Justice Rohinton Fali Nariman

-Honorable Mr. Justice D.Y. Chandrachud

-Honorable Mrs. Justice Indu Malhotra

The Court reasoned that discrimination based on sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a minuscule section of the population.

The petitioner in the case argued article 377 to be inconsistent with article 14 and article 21 of the Constitution. The ‘constitutional concept of dignity’, prevalence of HIV/aids and violation of article 25 was argued by the respondents.

SAME SEX MARRIAGES AND SPECIAL MARRIAGE ACT, 1954: (3)

The Supreme Court of India is currently hearing petitions on an attempt to legalize same sex marriages. This period holds significance in the legal history of the country. The outcome and decision of the court will pave way for judicial recourse for the homosexual community of the society. Similarly, the arguments presented by both sides will be used as references for future course of action, for the future generations, when similar crossroads are met with. Hence, this case holds crucial importance as it is history unfolding in the apex body of the country.

CASE LAW: Supriya Chakraborty & Anr v/s Union of India (W.P. (C) 1011/2022). (4)

On 14^th November 2022, writ petitions to the Supreme Court were filed by two same sex couples in order to seek legal recognition of same sex marriages in India. The Special Marriage Act, 1954 was the focal point of the petitions.

Special Marriage Act, 1954 recognizes marriage only between a male and a female [Section 4 (c)]. The traditional ethos of the society is upheld through the act. Thereby, matrimonial benefits such as adoption, surrogacy, employment, retirement benefits are denied to same-sex couples. Petitioners asked the court to declare section 4 (c) as unconstitutional, as it was a violation of rights to equality, freedom of expression and dignity. The Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969 were also challenged through the petitions. The petitioners also laid a reference to Navtej Singh Johar v/s Union of India (2018) and NALSA v/s Union of India (2014).

The CJI D.Y. Chandrachud referred the case to a 5 judge bench on March 13, 2023. The Bench includes:

-Honorable Mr. Justice D.Y. Chandrachud

-Honorable Mr. Justice S.K. Kaul

-Honorable Mr. Justice S.R. Bhat

-Honorable Mrs. Justice Hima Kohli

-Honorable Mr. Justice P.S. Narasimha

ARGUMENTS:

The learned counsel for the petitioners argued based on the following points:

Marriage is a union irrespective of genders
The right to be acknowledged as equals
Homosexuality is not a disease

The learned counsel for the state contended that it was a socio-legal issue that falls within the jurisdiction of the Parliament. Marriage was a union of two people and not just a man and woman, was argued by the counsel for the petitioners.

The Solicitor General for the State argued that right to love and cohabit is a fundamental right. However, marriage itself cannot be held as an absolute right, even among heterosexual couples. In this context, example of incest was cited to retain the same logic behind same sex marriage, a couple of years down the line. The bench termed this argument as far-fetched and held that sexual orientation and autonomy cannot be exercised in all aspects of marriage.

The Bench, as the hearing continues, has held that it is a complex web of 35 laws that govern the issue of divorce, adoption, succession, maintenance and other religious personal laws. Further, “We take your point that if we enter this arena, this will be an arena of the legislature. You have made a very powerful argument that this is for the parliament,” was held by Chief Justice DY Chandrachud.

The area of concerns raised by the bench included social rights, in terms of holding joint bank accounts, and sense of security to same sex couples. Nominating a partner in insurance policies or school admission for their children. How the Government will ensure that same-sex couples are not ostracized was also held by the Court.

CONCLUSION:

As much as aspects of homosexuality are making a space in the Indian constitution, societal acceptance and erosion of stigma is far more important. Individual liberty is an essential component of a vibrant democracy. The Indian society’s progress is set to embark on a delicate balance of rigidity and incorporating individual liberty.

ARTICLE BY ARYA THAKUR.

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BIBLIOGRAPHY:

https://main.sci.gov.in/supremecourt/2016/14961/14961_2016_Judgement_06-Sep-2018.pdf