ABSTRACT
The constitution envisions constitutional morality and fraternity principles, aspiring to an inclusive society that accommodates all classes of people, regardless of caste, class, gender, color, or race. Following this line of reasoning, on 8th September 2018 in a landmark judgment of “Navtej Singh Johar and Others vs Union of India” decriminalized colonial-era law section 377 of the Indian Penal Code. This section prohibits “unnatural cardinal intercourse against the order of nature” which has for decades criminalized homosexuals, their right to identity, sexual orientation, and bodily autonomy. This Judgement was appreciated not only in India but evoked sympathy from the international community as well. The message was sent that the period of social exclusion of the LGBTQ community has ended but still many questions are left unanswered such as homosexuals’ Right to Marriage and associated rights such as the right to adoption, succession, and divorce.
KEYWORDS: HOMOSEXUALITY, MARIAGE, RIGHTS, IPC, HINDU MARRIAGE ACT,
INTRODUCTION
The great German thinker, Johann Wolfgang von Goethe said, “I am what I am, so take me as I am”
Homosexuality has existed in Hindu culture since ancient times, as evidenced by historical texts that identify 60 genders and do not explicitly prohibit same-gender relationships. The Kama Sutra even discusses homosexual behavior and relationships. According to Rigveda “Vikriti Evam Prakriti” means “what seems unnatural is also natural”. There are Hindu temples where depictions of men and women engaging in sexual acts are shown. It was recognized in some or the other form until it was criminalized in the 18th century by colonial-era law. Section 377 of the IPC states that “Unnatural offenses: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 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.”
legal battle to decriminalize homosexuality
The legal battle fought by people from the LGBTQ community is remarkable. Naz Foundation an NGO, sought the claim to declare section 377 unconstitutional. In 2003, Delhi HC dismissed the petition but in 2009, it upheld its unconstitutionality and held it violates Articles 14, 15, and 21 of the constitution. This decision was overturned by a two-judge bench in the Naz Foundation vs. Suresh Kumar Koushal case whereby the court emphasized social morality and majoritarian opinion.
In 2014, in National Legal Services Authority v. Union of India and Others (NALSA), the court recognized the “third gender” and “sexual orientation”. Again a writ petition was filed in the Supreme Court and contention was raised “right to sexuality”, “right to sexual autonomy” and “right to choice of sexual partner” to be an inherent part of Article 21 and for declaring Section 377 of IPC as unconstitutional. After looking into various aspects of the constitution, the Supreme Court in Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors declared section 377 to be unconstitutional and decriminalized homosexuality.
Arguments of proponents and opponents
Each person is born with distinctive traits, and variances in cerebral and reproductive features are present among individuals the predetermined and set rules go against even against his existence. Various arguments had been advanced both by proponents and those who are against homosexuality. The petitioners had argued that this Section under its current form is violating various fundamental rights of citizens. The reference was taken of K.S. Puttaswamy vs. Union of India where sexual orientation was considered to be an intrinsic part of right to privacy. It was held that infringement of the rights of homosexuals violates Article 14 because “carnal intercourse against order of nature” is not well defined and its vague interpretation goes against the principle of reasonable classification. In Anuj Garg and Others. v. Hotel Association of India and Other, it was held that reasonable classification has to be in conformity with societal change. Further it was held that “sexual orientation” and “privacy” lie in the core of Article 14: Right to equality, Article 19 Right to freedom of speech and expression, and Article 21: Right to life and personal liberty .The petitioners also relied on Shafin Jahan v. Asokan K.M. and Shakti Vahini v. Union of India and Others where court has held that choosing a partner of one’s own choice is protected under Article 19 and 21 of the constitution. It was also emphasized that as per constitutional morality, it must be in consonance with will of the people and law must be altered so that even a minority section of the society does not feel vulnerable and be subjected to atrocities.
On the other hand, arguments were raised against homosexuality referring breakage of family system, sexual relationships against the norms of society, homosexual acts being against the various religious practices and prevalence of communicable diseases such as HIV AIDES due to such sexual activities.
violations of the rights of the LGBTQ community
For decades, the LGBTQ+ community has faced discrimination and harassment in various forms. In Indian society, heteronormativity is so deeply ingrained in people’s minds that any deviation from this binary relationship is considered abnormal. The crux of a constitution is to foster a society that embraces inclusiveness and welcomes all ways of life. Yet, individuals with non-conforming sexual orientations are frequently subjected to prejudice, discrimination, and neglect within Indian society. Such systemic biases are evident in personal and rape laws, which are founded on the binary concept of gender, completely disregarding other gender identities. This unjust practice has far-reaching implications, encroaching on the fundamental rights of the LGBTQ+ community in areas such as marriage, adoption, and inheritance laws.
Right to Marriage of LGBTQ
Although the decriminalization of homosexuality represents a positive advancement, it remains insufficient until the LGBTQ+ community receives the right to marry and is acknowledged as an integral component of the family structure. Marriage is a symbol of devotion between two individuals and should not be exclusively linked to the capacity to bear children. Furthermore, it is worth recognizing that access to marriage confers other privileges, including inheritance laws and the option to adopt children. Even the Hindu Marriage Act of 1955 defines marriage as a union between two individuals. spirits and between any two Hindus. It mentions the term husband and wife and there is not specific use of male and female which makes it gender neutral. However, considering the religious sentiment of people which is involved in this act, the said act cannot be used for marriage of people belonging to LQBTQ. The Special Marriage Act of 1954 offers a solution to the problem of religious intermarriage. It is a secular act that allows people from different religious backgrounds to get married through a civil ceremony, which involves registration before a marriage officer. However, the biggest issue with this legal initiative is that it is subject to the will of the legislative body. In 2015, a private member’s bill was introduced to legalize same-sex marriage, but it failed to garner enough support and could not be taken forward. The demand was also raised for uniform civil code in India
Contemporary developments
The demand for the right of marriage of the LGBTQ community has been repetitively made by proponents of the rights of this community. However, arguments advanced by the government reveal that it still bases its contentions on the breakage of family structure and morality over constitutional principles. A batch of petitions have been filed in the Supreme Court advocating for legalizing same-sex marriage but it has faced stiff opposition from Center and State governments who have argued that the right to marriage is not a fundamental right and any judgment of SC in this domain will result in the encroachment in the affairs of the legislature. Recently, a bench of Chief Justice DY Chandrachud, Justices SK Kaul, Hima Kholi, SR Bhat, and PS Narsimha heard the long arguments and the bench reserved its verdict. Senior advocate AM Singhvi said they did not just demand the right to marriage but the interpretation of the Special Marriage Act 1954 that allows the solemnization of non-heterosexual marriages because marriage is not an abstract concept but an important social institution.
Conclusion
In India, personal laws govern marriage but the major obstacle to the legalization of same-sex marriages lies in statutory definitions of the personal laws, and any change brought in personal laws could be seen as hurting to religious sentiments of the society. The solution lies in the Special Marriage Act but the strong refusal on the part has seen it being delayed and the LGBTQ community is still the victim of prejudice even though they Section 377 was decriminalization in 2017. The blatant use of morality, social order, and the concept of family should not be used as a pretext to deny the principles of progressive legislation. In our country, we have witnessed the abolition of Sati, female infanticide, and dowry. These customs and practices were also prevalent but with advancement in knowledge, these practices were invalidated. The same goes for the legalization of the marriage of same-sex couples. It might take time to resolve the conflict in the minds of people but they can be made aware of the fact that homosexuality had been practiced from ancient times in India and the British enacted Section 377 cannot be given the power to disregard people’s rights.
LGBTQ people must have full access to their fundamental and constitutional rights, despite the complexity of the issue and any recent developments. It is imperative that we remain resolute in our commitment to achieving this goal.
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WRITTEN BY MUSKAN.