Same sex marriages

Introduction

Whenever we talk about human as well as civil rights, many of the developed countries have embraced same-sex marriage. For a long time third genders have been suffering gender-based discrimination. They have persistently fought for legal recognition of their rights. Protection of homosexual relationships legally on the equal footing like heterosexuals has now become a desideratum. The right to marriage is considered a human right. However, there exists no law nor any legislation which legally enforces such right of transgenders. They were given a hope when Supreme Court delivered the NALSA judgement. It was the first attempt to legally recognize their gender and the fundamental rights which conferred to all irrespective of an individual’s sex.

Marriage is considered as one of the important elements of a person’s identity in politico-legal and socio-economic sense. It is an institution which legally codified under various personal laws for recognizing the relationship between two parties. It is of great public importance as it gathers much significance in respect of rights and duties like property, inheritance and those kinds of related rights. These rights stem from a marriage. In today’s world the institution of marriage is not only a civil right but it has gained international acceptance. Right to marry is obligatory on the state. In India, the right to marry is now recognized as a constitutional right, which grants the freedom to an individual to choose spouse of their own choice.

Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors held, Article 21 confers freedom of life and liberty, which doesn’t merely amount to physical existence but a qualitative and meaningful life with dignity. Inherent human dignity is a precondition of warranting the rights under Article 21 of the constitution. Marriage right is crucial for retaining individual dignity and also for enjoying meaningful human existence, therefore courts have interpreted marriage to be an important right under Article 21 of the Constitution.

Although the right to marry according to one’s will have been recognized as a fundamental right the current scenario doesn’t allows homosexuals to exercise their rights. LGBT community faces problems for exercising even their most basic rights. The legislators are not making any efforts to guarantee them their fundamental right of marriage. Most of the developed countries have recognized same sex marriages in their legislation in order to ensure the legal and social protection on same footing as heterosexual couples. Various advantages which are available to heterosexual couples like maintenance, succession, pension rights are denied to homosexual couples. 

After the decision in Suresh Kumar Koushal v. Naz Foundation (hereafter referred as Koushal) which upheld constitutional validity of section 377 of Indian Penal Code criminalizing carnal intercourse against nature’s order, most of the argument have focused around the efficient ways to overturn the decision of the court. This paper not highlights the current social scenario and position of homosexuals but also argues on the point of significance of legal recognition of homosexual relationships. It is an undisputable fact that discrimination on the basis of sex is violative of our fundamental rights enshrined under Article 15.

Sex includes sexual orientation within it and discrimination based on an individual’s sexual orientation is objectionable under criminal as well as civil laws. The current legislations on personal laws only recognizes heterosexual marriages, which undoubtedly denies homosexual couples of the legal and social recognition as well as the benefits which is conferred by these legislations to married people.

The article concludes that amending personal laws to legalize same sex marriages may not be a feasible option as it can hurt religious feeling of few sections and subsequently lead to unfavorable outcomes. Therefore, the viable alternative available to recognize the homosexual’s rights is to make an amendment in the Special Marriage Act. To do so, one may argue that denial of marriages rights to homosexuals is violation of their basic right and unfair discrimination against LGBT (lesbian, gay, bisexual, transgender) community.

The struggle of LGBT community for recognition their rights and against social discrimination is long and toilsome. The preliminary objective to decriminalize consensual Act of sex by persons belonging to same class of sex is achieved by most countries by legislations or by overturning such laws through judiciary. However in West Asia and Africa around seventy-six countries still holds such conservative laws. India joined them when Supreme Court upheld the validity of section 377 of the India Penal Code in Koushal.

It overturned the developing decision in Naz Foundation v. Govt. of NCT of Delhi (hereafter referred as Naz Foundation) by the High Court of Delhi, which decriminalized consensual sex between adults. The paper focuses on the point that it only decriminalizing same sex acts is not sufficient for proper recognition and freedom of homosexuals the relevant legal rights should also be granted to them. It also suggests various alternatives which may be adopted for the recognition.

As it is not just a question pertaining to legal aspects but it is a matter of basic rights which affects personal lives of many individuals. In a country like India, along with modernization revivalist and conservative ideas are also at growth. So, opposition because of customs, practices, religion, tradition acts as an obstruction for liberal legislation. The petition filed by Naz Foundation was initially dismissed by the High Court of Delhi saying that there existed no cause of action and it was merely an academic issue. Subsequently it was challenged in a special leave petition and then the Supreme Court remanded the special leave petition for a fresh decision. Therefore, considering Koushal it shouldn’t be interpreted that a progressive approach cannot be adopted.

Homosexuality and the Indian perspective

Homosexuality can be defined as an attraction be it romantic or sexual between two individual belonging to the same class of sex. It is nothing but enduring disposition to experience sexual affectionate from people of same sex. To answer the question as to why homosexuality exists in human scientists have taken on several research. Few biological theories suggest the cause of sexual orientation of an individual is favoured by either genetic factors or the early uterine environment or both in combinations. Research shows that it is a normal and natural variation in which isn’t controlled by an individual. However, even in 21st century some section of society believes it to be dysfunctional.

In India, it is seen as a taboo since ages. Most personal laws describe marriage as sacrament and union of two souls between individuals belonging to different sex. Same sex relationships are considered grossly immoral and violative of custom and religious beliefs. As marriage is a personal area and is governed by one’s religious faith gay, lesbian marriages are considered unholy. People in India often believe that it is a part of western culture and it is a bad influence of foreign countries. However, it is not western practise, because our ancient scriptures and literature reflect somewhat a similar concept. The Rigveda, one of the sacred texts in Hinduism mentions, ‘Vikriti Evam Prakriti’ which means what seems to be unnatural is also natural.

Under Hindu Marriage Act

Hindu Marriage Act governs the marriage and related aspects like divorce etc, of any two individuals belonging to the Hindu religion. It is applicable to any other person who is by religion Jain, Buddhist or Sikh within the territory of India. According to the Act marriage in Hindu religion is considered to have a divine origin and is a sacred union of two individuals for performing religious duties. In the present environment the most convenient course of action would be to recognize marriages among same-sex individuals under the personal laws.

The Hindu 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 woman. 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 recognize them under the personal laws few approaches that can be possibly made are as follows: 

1. Existing laws can be interpreted so as to allow same sex marriages. 
2. LGBT (lesbian, gay, bisexual, and transgender) can be interpreted as a different community, the customs of which permits same sex marriages. 
3. Interpretating the Act in such a manner so as to allow same sex marriage, if not then it would be unconstitutional.
4. And lastly, make relevant amendments in the Act itself. 

Other than using the term bridegroom and bride the Act is neutral in terms of gender. Same sex marriage can be permissible provided one of them (in homosexual couple) is identified as groom and another as bride. At one instance the same approach was adopted by a lesbian couple, one was presented as groom and another was made to be identified as bride.

Although it is opposed to the rules of interpretation of statute and is also not in line with general understanding of the terms used (bride and groom), the interpretation attempts to mingle same sex marriage with other traditional forms of marriage. The second approach could be to recognise LGBT community as a separate community, one which have its own customs and practices allowing same sex marriage. A similar approach was adopted by Anti-Brahmin and Arya Samaj. They started self-respect moment and formed their own ritual and practices for marriage. It was legally recognized when section 7A was inserted in the Act by an amendment in 1967.

The third approach can be interpretating the Act in such a manner so as to allow same sex marriage. If not, then the Act may be held unconstitutional on the ground it discriminates on basis of sex and denies them of their basic right. This argument was supported by Delhi High Court in the case of Naz Foundation.

However, courts may not be flexible to favor such views after Koushal. In the case of State of Bombay v. Narasu Appa Mali Bombay High Court held that personal laws cannot be tested on yardstick of fundamental rights. The last approach is to make desired amendments in the respective personal laws. It is the most workable solutions among all the above. However, it may prove to be most difficult and controversial at the same time because of disapproving behavior towards the LGBT community by a few sections of the society. So, if an amendment is not possible can same sex marriages happen within the existing legislation?

Interpreting few terms of Hindu Marriage Act 

The Hindu Marriage Act lays down certain conditions for a valid marriage, they are:

• Union of Spirits- The Act doesn’t use specific terms such as male/female or man/woman. So, homosexuals can be very well incorporated into it. 
• Between any two Hindus- The Act mentions, “A Marriage may be solemnized between any two Hindus…”
•  No Express Prohibition- The Act doesn’t expressly say marriage can only be solemnized between two individuals of opposite gender. The Act under section 2 lists down who all are entitled to marry under it. 
•  Customary rites and Ceremonies- Section 7 says marriage can be solemnized following customary rituals of either party. The marriage is invalidated if rites are not performed properly. These ceremonies need to be proved for a legitimate marriage under the Act.
• Bride and bridegroom- Only section 5(ii) and section 7(2) uses the term bride and bridegroom. Rest all other section mentions neutral terms like ‘person’ or ‘party’. The term bride and bridegroom may be interpretated as roles which parties may prefer in a relationship. Hence, the Act is neutral other than using bride and bridegroom in these two sections. Therefore, we can reasonably contend that same sex can solemnize their marriage if one plays the role of bride and another plays bridegroom.

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 by 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 requires 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 an 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 existing BJP govt. While the Congress and the CPI(M) both included de-criminalization in their manifestos for the Lok Sabha elections, the BJP was clear in its support of the judgment – a party leader commenting that homosexuality is an unnatural Act that cannot be supported.

At present, many countries have made laws to permit same sex marriages. The Netherlands was the first to legalize same sex marriage in 2001. However, there were several enactments which were anti-same sex also. In South Africa, the constitutional court held that same sex marriages are violation of its Constitution. As section 9(3) of the its constitution states “The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including pregnancy, gender, marital status, sex, ethnic or social origin, color, race, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

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 included sexual orientation within it. Several foreign judgments were cited in this case for supporting the propositions. It will be discriminating and violative of 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 Marriage 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 decriminalized section 377 of Indian Penal Code, there have been significant of instances where people of homosexual committee are coming out to stand and demand their rights status. In the case of Shakti Vahini v. Union of India 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.

The NALSA judgment: a bright side

The decision of National Legal Services Authority v. Union of India & Ors. (hereafter referred as NALSA) must be praised for criticizing the gender biased discrimination and also for bringing a ray of hope and the promise which was left outside the legal framework. The division bench comprising of Justice K.S. Panicker Radhakrishnan and Justice Arjan Kumar Sikri gave legal identity to all the individuals whose gender doesn’t match with the accepted standards of society.

The judgment proved to be a revolutionary move having great impact on present laws related to adoption, marriage, inheritance etc. which will now be moved away from general system of male and female for extending these legal and social rights to third genders. This revolutionary judgment was delivered just a few months after Suresh Kumar Koushal and another v. Naz Foundation which gave a regressive decision as it upheld the validity of section 377 of Indian Penal Code.

Although, the court accepted the discriminating nature of section 377, it also made it clear that it leaves judgment of Koushal uninterrupted and only focuses on the recognition of third genders. The court observed “that fundamental rights are available to third gender community in the same way as it is available to males and females. As of now the hijras community are perceived as third gender, trans-persons will be having to choose between male or female or continue to be in third gender category. They will be given the benefits offered by the governmental policies, under minorities section as they qualify to be socially backward and disadvantaged class. Majorly these mandates were made by the court directing Centre and State Governments: 

• Legal Recognition of Third Gender: Fundamental rights were made available to third genders like it is available to any other citizen of the country. Not recognizing them in statues (criminal or civil) like those relating to divorce, adoption, marriage is clear discrimination against the community. 
•  Social and Economic Rights: Both central and state govts. will be giving the community several social welfare scheme. The community will be treated as “socially and economically backward classes” (SEBC) so that they benefit from reservations. 
• Sanitation and Public Health: Both the govts. are directed to provide proper medical treatment to the community and they are to be provided with separate toilets in public places. The govts. are also directed to provide HIV/ Sero- surveillance measures to them.
• Public Awareness: Both the govts. are directed to take steps in order to create awareness for proper incorporation of the community in the society.

Conclusion

The interpretation of marriage varies depending on different cultures. Majorly it is an institution which seeks to acknowledge personal connections like family and sexual relationship of an individual. It is clearly visible that homosexuals face discrimination and intolerance, and exclusion from the normal society. The reasons maybe personal or social. At present 29 out of 195 countries have legalized samesex marriages.

However, still in India it seen as taboo as they are called unholy and unnatural. The anti-discriminatory judgment in Naz Foundation and NALSA must be built further for overruling Koushal and achieving the recognition of same-sex marriages legally as well as socially. The most suitable method would be incorporating homosexual marriages under personal laws. However, it is indeed a difficult task to amend personal laws to recognize the legality of same-sex relationships because any intervention in the personal laws may be seen as intervention in religious freedom. Then another alternative is to make desired amendments under Special Marriage Act on the grounds of it being discriminatory to homosexuals by legally not recognizing the “right to marriage” of the community hence, constitutionally invalid.

If the judgment of Koushal is overruled, then there is great possibility of principle laid down in Naz Foundation case which prohibits discrimination based on sexual orientation will affirm prohibition if discrimination under Article 15. Through various judgments like Navtej Singh Johar v. Union of India, Naz Foundation and NALSA judiciary have taken initial but significant steps for removing the stigma which is attached to LGBT community. and now it’s the turn of citizens of the country to address and enforce the principles laid down in these judgments.

Throwing money at hijra community and putting them down every time is an insult to humanity. These kinds of actions and treatment will only make the struggle of LGBT community tougher. Therefore, it is extremely essential to make laws in black and white letters for them and at the same time also enforce them strictly for properly recognizing the human dignity of the concerned community.

Is homosexuality legal in India?

Introduction 

Is homosexuality legal in India? Well, a pretty straightforward answer to this question would be, “Yes, homosexuality is legal in India.” But the struggle to get it was not as easy as it sounds. From a position of complete lack of rights, the Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex (hereinafter referred to as the LGBTQI) community has waged numerous societal wars to achieve freedom and treatment as equal citizens or human beings. Over the ages, social reform movements centred on LGBTQI rights have earned this persecuted group of people close to equal and equal rights in many jurisdictions, and the reformation movements are currently going on around the world. The movement has begun to capture the imagination of decriminalisation of homosexuality, the right to family, and, in some countries, even the right to adoption, ranging from basic dwelling rights, to access to public employment, to the right to self-determination of one’s own sexual identity. Most civilisations’ religions, customs, and cultures fought reform initiatives for LGBTQI with the stereotypes they are always armed with.

In this article, the author has tried to discuss various aspects that led to the legality of homosexuality in India by discussing its origins in criminalisation, legislation, and various judicial decisions. The article will also touch upon a brief discussion of the legality of same-sex marriages in India.

History of homosexuality in India

Let us begin our discussion on the legality of homosexuality in India by going through its history first. It is said that homosexuality has been recognised in India since ancient times. In fact, there are traces of homosexuals being respected in society in mythology as well. According to the legislative history of the issue of homosexuality, the Fleta, written in 1290, and the Britton, written in 1300, are the first records of sodomy (anal sexual behaviour with another person) as a crime in the Common Law of England. 

Both scriptures advocated for the burning to death of sodomites. The Buggery Act of 1533, which Queen Elizabeth I reenacted in 1563 and which ultimately served as the foundation for the eventual criminalization of sodomy in the British Colonies, later made sodomic acts punishable by hanging. Later, in 1817, oral-genital sex was dropped from the concept of buggery. And in England and Wales, the death sentence for buggery was officially abolished in 1861. It was believed that intercourse could only be done for the purpose of conception and anything done beyond that would be a crime.

In India, Lord Macaulay drafted the Indian Penal Code (IPC), which was first implemented in British India in 1861. Chapter XVI of the IPC, “Of Offences Affecting the Human Body,” incorporates Section 377 of the IPC. Section 377 IPC is included in this Chapter under the sub-chapter “Of Unnatural Offenses.” This is how homosexuality got penalised in India by the Britishers. 

It’s noteworthy that Lord Macaulay’s draft of Section 377 differed significantly from the final version of Section 377. Lord Macaulay’s decision to punish touching another person for the purpose of satisfying ‘unnatural lust’ without their “free and intelligent consent” with a term of imprisonment extendable to life (but not less than seven years) is noteworthy for the era in which he lived, as opposed to his decision to punish the same offence when consensual, which would result in a maximum sentence of fourteen years in prison (but not less than two years). Even in this most conservative era in English history, Lord Macaulay understood that ‘unnatural lust’ might be punished with a lighter penalty if it was done with consent.

Given that the Indian Penal Code has been in existence for more than 150 years, it is shocking that only a few changes have been made to it. Early in the history of this nation, the 42nd Law Commission Report (1971) did not suggest that Section 377 be changed or repealed. However, revisions made to the preceding sections, which made it plain that anal intercourse between consenting adults, whether same-sex or otherwise, would not be punished, led B.P. Jeevan Reddy, J.’s Law Commission Report of the year 2000 (the 172nd Report) to suggest its elimination. But thanks to the transformative constitutionalism policy followed by our Indian judiciary, there has been a great development with regard to the rights of homosexuals in the country. Now let us discuss them further in the article.

What is Section 377 of the Indian Penal Code

As noted above, Chapter XVI of the IPC, “Of Offences Affecting the Human Body,” incorporates Section 377 of the IPC. Section 377 reads as follows:

Unnatural offences.—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. 

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Development through judicial pronouncements

Naz Foundation v. Government of NCT of Delhi (2009)

The case of Naz Foundation v. Government of NCT of Delhi (2009) is one of the most influential decisions made by the Delhi High Court, comprising the bench of Chief Justice Ajit Prakash Shah and Justice S. Muralidhar, as it addressed a number of issues pertaining to the existence of Section 377 of the IPC in today’s time. The Court tested the impugned provision’s compliance with Articles 14, 15, 19, and 21 of the Indian Constitution in addition to determining whether it is constitutionally valid.

The Court observed that to ensure that the purpose of the Constitution’s rights is met, the constitution must be interpreted in a dynamic and progressive manner. Such an interpretation necessitates prioritising the constitutional commitment to provide all constitutional rights to all people, including LGBT people.

The Court also ruled that sexual preferences are protected by the individual’s right to dignity and privacy since Section 377 directly infringes on the aforementioned right, it breaches the core of Article 21. In order to address the question of whether Article 14 had been violated, the Court conducted the tests outlined by the Supreme Court in State of West Bengal v. Anwar Ali Sarkar (1952). In its ruling, the Court noted that the contested statute created an irrational differentia and that there was no necessary connection between preventing child sexual abuse or enhancing public health and criminalising consenting adult sexual relationships.

The Court then went on to define the term ‘intercourse’ in Article 15 to have a considerably larger circumference in addition to ‘sexual orientation,’ going beyond just indicating gender. The Court went on to conclude that Section 377 is prima facie discriminatory towards sexual minorities and is consequently in violation of Article 15 based solely on this view. The Court considered it unnecessary to consider whether Article 19 was violated because the disputed statute also violated Articles 21 and 14.

The Court also reflected concerns about the earlier days of Section 377 because of its stigmatising consequences of attaching the identity of hijra to criminality. The Court discussed the criminalisation of identity merely because they belonged to a particular community under the Criminal Tribes Act of 1871, after citing evidence that Section 377 was used to assault and harass a person. Although the Court did not invalidate Section 377 in its entirety, the Section was swiftly ruled unlawful as it made adult consensual sexual actions in private illegal. The Court stated in the decision that the ruling might stand until Parliament decided to change the law.

Suresh Kumar Koushal v. Naz Foundation (2013)

This case was heard in the Supreme Court of India in an appeal against the decision made by the Delhi High Court in Naz Foundation v. GOI. Surprisingly, in this case, the Supreme Court struck down the ruling given by the Delhi High Court. 

The petitioners contended that Section 377 does not appear to mention or categorise any specific group or gender and is therefore not in violation of Articles 14 and 15 and 21. The Court agreed with their arguments and decided that Section 377 does not violate Articles 14, 15, or 21 and that carnal intercourse, as the petitioners meant and defined it to mean, should be penalised. 

According to Justice Singhvi, Statute 377 is pre-constitutional legislation and had it violated any of the rights protected by Part III, Parliament would have long ago recognised this and removed this Section. This justification led him to declare the clause to be constitutionally legitimate. The Delhi High Court’s decision to read down the Section in the aforementioned case was incorrect because no part of the Section can be severed without affecting the Section as a whole, and that Section also happens to be the only law that governs cases of paedophilia and tyke sexual abuse and assault. He also claimed that the doctrine of severability and the practice of reading down a particular Section flowed from the presumption of constitutionality. Therefore, the Supreme Court determined that Section 377 of the Indian Penal Code does not have any constitutional flaws and leaves it up to the appropriate legislative body to decide whether it would be desirable and legitimate to remove the Section from the statute book or adjust it to permit private consensual sexual activity between two adults of the same sex.

National Legal Services Authority v. Union of India (2014)

In 2014, the Supreme Court in this landmark case gave legal recognition to the ‘third gender.’ The Court observed that for the purpose of preserving the rights under Part III of our Constitution and the regulations passed by Parliament and the state legislature, ‘Hijras’ and ‘Eunuchs’ should be considered as ‘third gender’ in addition to binary gender. The right of transgender people to choose their own gender is also respected, and the Central and state governments were asked by the Supreme Court to recognise transgender people’s gender identities, whether they identify as male, female, or as a third gender.

The Central and the state governments were directed by the Supreme Court to take action to treat them as socially and educationally disadvantaged classes of citizens and to consider all forms of racial and ethnic discrimination when considering them for admission to educational institutions and positions in the public sector. Further, the Court observed that the challenges that Hijras/Transgender people encounter, such as fear, embarrassment, gender dysphoria, societal pressure, depression, suicidal thoughts, and social stigma, should be taken seriously by the Central and state governments. 

K.S. Puttaswamy v. Union of India & Ors. (2017)

In K.S. Puttaswamy v. Union of India & Ors. (2017), a 9-judge Bench of the Hon’ble Supreme Court concluded that the dignity of an individual, human equality, and the search for liberty are the foundational pillars of the Indian Constitution. The Supreme Court went on to say that dignity is a constitutional ideal enshrined in the Preamble. The right to privacy, self-determination and autonomy are all facets of the right to dignity protected by the Indian Constitution. The Court also stated that family, marriage, procreation, and sexual orientation are all important aspects of an individual’s dignity.

We also need to emphasise the lack of substance in the contention that privacy is a luxury for the few, as quoted by J. Chandrachud, speaking for the majority in Justice K.S. Puttaswamy v. Union of India. He emphasised that everyone in society, regardless of social class or economic condition, has the right to privacy, which preserves intimacy and autonomy. It is privacy, as a fundamental and core characteristic of life and human liberty, that allows a person to resist a forced sterilisation programme. However, if the state were to establish mandatory drug trials of non-consenting men or women, privacy would be a powerful guarantee. The sanctity of marriage, the freedom of procreation, the choice of family life, and the dignity of being are all issues that affect everyone, regardless of social class or economic status. The pursuit of happiness is based on self-determination and dignity. Both are crucial aspects of privacy that make no distinction between an individual’s birthmarks.

The right to privacy guaranteed by Article 21 includes privacy in family life. The right to marry queer or non-heterosexual people, which is recognised by law in the United States, was also cited in this Hon’ble Supreme Court decision, where the decision to marry someone is part of the foundation of the family and thus falls within the right to privacy in family matters. 

This case is important to be mentioned here because even though it did not legalise homosexuality in the country per se, it was the first judgement ever to state that sexual orientation is an inclusive part of the right to privacy and thus protected by the Indian Constitution.

Navtej Singh Johar v. Union of India (2018)

September 6, 2018, is a historic day for India as it is on this day that the Supreme Court gave legal recognition to the LGBTQI community by legalising consensual sexual intercourse between individuals of the same sex through the judgement of Navtej Singh Johar v. Union of India (2018). Let’s understand the ruling in this case briefly:

Facts of case

As noted above, the Supreme Court’s judgement in Suresh Kaushal reversed the Delhi High Court’s judgement in Naz Foundation. The Supreme Court’s decision was contested in a number of curative petitions. While the curative petitions against Suresh Koushal were still pending, five members of the LGBTQ community — a well-known Bharatnatyam dancer, Navtej Singh Johar; restaurateurs Ritu Dalmia and Ayesha Kapur; hotelier Aman Nath; and media personality Sunil Mehra, filed a new writ petition calling for the repeal of Section 377 of the IPC insofar as it criminalised consensual sex.

Even though the curative petitions were still pending, the Supreme Court on January 5th, 2018, constituted a Constitution Bench to hear the challenge against Section 377 in its entirety. This might be a result of the findings reached in the nine-judge decision in Puttuswamy’s case, which suggested that the rationale and judgement in Suresh Koushal’s case were fundamentally flawed. This case was heard by a five-judge panel consisting of Chief Justice Dipak Misra, Justices A.M. Khanwilkar, D.Y. Chandrachud, R.F. Nariman, and Indu Malhotra beginning on July 10, 2018.

Key issues

1. Whether Section 377 of the Indian Penal Code violates Article 19(1)(a) by violating the fundamental right to expression as it criminalises the basic right to express the sexual orientation of persons belonging to the LGBTQI+ community?
2. Was the rationale given by the Supreme Court in its own judgement in the Suresh Kaushal case correct?
3. Whether Section 377 is violative of Articles 14 and 15 as it allows discrimination against LGBTQI on the basis of their “sexual orientation” and “gender identity”?
4. Whether Section 377 violates the right to autonomy and dignity of LGBTQI people provided under Article 21 by penalising private consensual acts between same-sex persons?

Important observations by the Supreme Court

Transformative power of the Constitution and constitutional morality

The Court observed that there exists a right to love a person of one’s choice. It is a desire for everyone to realise their constitutional, human, and humane rights as well as their equal citizenship and just, humane, and caring existence. Regarding the issue of the constitutionality of Section 377, the Court held that its effects extend far beyond the absorption of gays into the LGBT community or anybody else in a similar situation as fully equal citizens. It also includes inter-caste and inter-community interactions, which society aims to prevent. In addition to providing a minority group with their proper place within the constitutional framework, the preservation of LGBT people’s rights and those of anybody else in a similar situation also speaks to the kind of nation we want to live in and what that means for the majority.

Section 377 of the IPC is based on moral principles that are incompatible with a constitutional system where liberty must triumph over prejudice and the mainstreaming of culture. Above all else, our Constitution is a reflection on accepting diversity and was created with the goal of fostering an inclusive society that accepts a variety of lifestyles. The order of nature that Section 377 refers to includes intimate conduct that the social order regards as unpleasant as well as non-procreative sex. What ties LGBT people to couples that value one another regardless of caste or community is the fact that each of them is challenging established societal hierarchies while exercising their right to love at great personal peril. Since the constraints imposed by systems like gender, caste, class, religion, and community are seen as part of the order of nature rather than just the prohibition of non-procreative sex, the right to love becomes a fight for everyone, not only for LGBT people.

The Court further held that the effects of Section 377 go well beyond just decriminalising some behaviours that were forbidden by colonial law; they also affect people’s very identities, existence, and right to equal and full citizenship.

Availability of various rights enshrined under the Indian Constitution

In accordance with Articles 14, 15, 19 and 21 the rights to sexual identity, sexual orientation, freedom, sexual autonomy, sexual privacy, sexual expression, choice of partner/sexual partner, and sexual health are recognised as fundamental rights. The Court ruled that understanding contemporary ideas of sexuality and sexual identity requires understanding the shift from reproductive/procreative instinct to erotic desire and emotional intimacy. This is due to the blurry lines between homosexuality and heterosexuality, which may even be an old myth or creation given how fluid sexual identities are today.

According to the Court, homosexuality is neither a mental illness nor a disorder. It is an accepted and common form of human sexuality.

Difference between Section 375 and Section 377 of IPC, 1860

The element of consent is where Section 375 and Section 377 differ most. While Section 377, on the one hand, criminalises all sex between two adults, whether heterosexual or gay, regardless of consent, on the other hand, Section 375 recognises that the absence of deliberate and informed consent qualifies a heterosexual act as rape. Therefore, consensual heterosexual relationships between adults are not illegal under Section 375, but consensual carnal relationships between adults who identify as LGBT are illegal under Section 377.

The Court observed that Section 377 declares all forms of non-procreative sexual behaviour to be unlawful and treats them as unnatural without taking consent or harm into account. It makes a distinction between homosexuals and heterosexuals. It is saddening to see that even though the LGBT community also has the same human, fundamental, and constitutional rights as other people, it is treated unfairly and as a different class of individuals. When other penal statutes like Section 375 IPC and the Protection of Children Against Sexual Offences (POCSO) Act, 2012 punish non-consensual carnal intercourse, the classification selected by Section 377 has no rational relationship to the goal it aims to achieve.

Judgement of the Supreme Court

In this judgement, Section 377 of the IPC was found to be unconstitutional by the Supreme Court of India because it criminalises adults’ consensual sexual acts, regardless of whether they are heterosexual, homosexual, members of the lesbian, gay, bisexual, or transgender (LGBT) community, or anyone else in a similar situation. The Section was held to violate Articles 21, 14, 15, and 19 of the Indian Constitution. According to the Court, the LGBT community and those in comparable situations are entitled to the same human, constitutional, and fundamental rights as everyone else. However, the Court held that any act listed in Section 377 that is performed between two people without one of them having given consent, or any type of sexual interaction with an animal, would be a criminal offence. Lastly, it was held that the two-judge Supreme Court bench ruling in Suresh Kumar Koushal (2014) is overturned.

Development post decriminalisation of homosexuality

The Transgender Persons (Protection of Rights) Act, 2019

In the aftermath of the two landmark rulings, the NALSA judgement (2014) and the Navtej Singh Johar judgement (2018), in 2019, Parliament passed a law called the Transgender Persons (Protection of Rights) Act, 2019. This is the first law established by the Parliament to protect transgender people’s rights and eliminate all types of discrimination against them in the country. Let us go through a few key provisions of this Act:

Transgender definition 

Section 2(k) of the Act recognises a transgender person as someone whose gender does not correspond to the gender assigned at birth. It encompasses those who identify as transgender, intersex, genderqueer, and with socio-cultural identities like kinnar and hijra. 

Prohibition against discrimination 

Section 3 of the Act prohibits all persons and corporations from discriminating against a transgender person on the below-mentioned grounds:

• Discrimination in educational establishments.
• Discrimination in employment.
• Discrimination in healthcare services.
• Discrimination with regard to access to and enjoyment of goods, facilities, services, etc. that are available for the public.
• Denial of the right to movement.
• Denial of the right to reside, rent, or otherwise occupy any property.
• Discriminating an opportunity to hold public or private officers.
• The denial of admission to a public or private facility where a transgender person may be in charge or custody.

Obligations on the government for welfare measures

The Act imposes certain obligations on the government to ensure due welfare measures are being taken. It states that the appropriate government will take action to ensure transgender people’s full inclusion and engagement in society. Additionally, it must implement programmes that are transgender-sensitive, rescue and rehabilitate them, provide them with self-employment and vocational training, and encourage their participation in cultural events.

The National Council for Transgender Persons (NCT)

Section 16 of the Act states that a National Council for Transgender Persons (NCT) shall be constituted by the Central Government through notification. On the other hand, Section 17 states the functions of the Council. The Council is supposed to provide advice to the central government and keep a watch on the results of transgender-related projects, laws, and regulations. Additionally, it will also have to address the complaints of transgender people.

Offences and penalties

Section 18 of the Act imposes six-month imprisonment, which may be extendable to two years or with a fine. The following are the offences recognised by the Act:

1. Any act of forced or bonded labour.
2. Any kind of denial to a transgender person of the use of public place.
3. Forceful removal of a transgender person from their household or village.
4. Any kind of physical, mental or emotional abuse caused to the transgenders.

Arun Kumar and Sreeja vs. The Inspector General of Registration, Chennai (2019)

It was decided in the case of Arunkumar v. Inspector General of Registration (2019) that transgender people have the right to marry under Article 21 of the Indian Constitution and that the term ‘bride’ under the Hindu Marriage Act, 1955, includes transgender persons who identify themselves as women. The Madurai Bench of the High Court of Madras held that a marriage between a man and a transwoman, both professing the Hindu religion, was valid under the Hindu Marriage Act, 1955. The Court upheld Ms. Sreeja’s self-identification as a woman and acknowledged her right to do so, as well as the rights of other intersex and transgender people who identify as women, to be included in the term ‘bride.’ It was observed that the state’s refusal to register her marriage constituted a breach of her fundamental rights.

Ms. S. Sushma & Anr. vs. Commissioner of Police, Greater Chennai Police 2021

This 2021 case by the Madras High Court is a landmark decision which shows the positive impact of the Navtej judgement. This is a first of its kind case where the judge himself went for a counselling session to understand same-sex relationships. The judge said that he needs to be fully ‘woke’ on this aspect for the judgement to come out from his heart rather than his head. The Court passed various guidelines in this judgement to ensure that there is a rightful implementation of the Navtej judgement.

1. The Union and state governments have been ordered by the Madras High Court to take action to prevent attempts by medical and healthcare professionals to ‘cure’ or alter the sexual orientation of members of the LGBTQIA+ community. The Court has further ordered that appropriate measures, including the revocation of the professional’s licence to practise, be taken against anyone involved in conversion ‘treatment’ in any way.
2. If the police receive a complaint against a girl, woman, or man, and if an additional inquiry reveals that the individual against whom the complaint is filed is a consenting adult who belongs to the LGBTQI community, the police must immediately close the complaint without harassing the individual in any way.
3. The Court directed the Ministry of Social Justice and Empowerment to publish a comprehensive list of NGOs who are working on LGBTQI issues on its website. 
4. Further, these listed NGOs are required to maintain confidentiality and to submit aggregate annual reports to the Ministry.
5. The LGBTQI community’s problems shall be addressed by offering financial assistance, counselling, or legal assistance with the aid of DLSA or any other support. The assistance of law enforcement agencies is available for resolving issues encountered by community members and for crimes perpetrated against members of the LGBQTIA+ community.
6. It is necessary to make appropriate arrangements to handle the accommodation issue. According to the Court, the existing housing options (stay homes, Anganwadi shelters, and Garima Greh) were only able to offer shelter, food, medical care, and recreational amenities; however, the Court ordered that following the issuance of this order, such homes must also support the LGBQTIA+ community’s capacity building and skill development.
7. Further any other initiatives and policies necessary to end prejudice against LGBQTIA+ people must be adopted, and they must be developed with the assistance of other ministries and departments as well as the Union and state governments.
8. The Hon’ble Court recommended a number of awareness campaigns for various groups, including parents of LGBQTIA+ community members, DLSA and SLSA, the court, physical and mental health experts, educational institutions, and healthcare staff. 

It is important to note that this is just a suggestion, and thus the list is merely illustrative and not comprehensive.

Queerala & Anr. v. State of Kerala & Ors (2021)

The Kerala High Court recently ordered the State administration to create regulations against the allegedly forced conversion therapy given to members of the LGBTQI+ community by State-licensed medical professionals. The State government was ordered by the Court to investigate the situation and, if required, form an expert committee to research it. Based on this study report, the State had five months to draft guidelines and submit them to the Court.

The decision was made in response to a petition filed in Kerala by a recognised LGBTQI community organisation and a transman who claimed to have been the victim of coerced conversion therapy.

After the Navtej Singh Johar judgement, various high courts recognised the legitimacy of non-heterosexual relationships and marriage partners and granted them habeas corpus protection.

The following is an illustrative list of such cases:

1. Sadhana Sinsinwar & Anr. v. State (2018).
2. Paramjit Kaur and Anr. v. State of Punjab (2020). 
3. Vanitaben Damjibhai Solanki v. the State of Gujarat (2020).
4. Bhawna & Ors v. State of NCT (2019).
5. Chinmayee Jena @ Sonu Krishna Jena v State of Odisha (2020)

National Medical Commission ban on conversion therapy

With the National Medical Commission (NMC) designating conversion therapy as “professional misconduct” on August 25, 2022, and authorising State Medical Councils to take disciplinary action if the guideline is broken, another layer of prejudice against the LGBTQIA+ population is being eliminated. Particularly when they are young, members of the LGBTQI community or people of any other orientation are frequently forced to modify their sexual orientation or gender identity through conversion or “reparative” therapy. Therapy can take many different forms, including exorcism, electroshock therapy, psychosomatic drug use, and psychiatric care. Trauma from this can result in drug addiction, sadness, anxiety, and even suicide.

The Madras High Court had ordered the NMC to publish an official notification classifying conversion treatment as wrong under the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002. If the Supreme Court’s repeal of Section 377 of the Indian Penal Code in 2018 was the first step toward decriminalising homosexuality, the NMC’s notice is also a modest step in that direction. But much more work needs to be done if we want the LGBTQAI+ community to feel safer.

There should be clarity regarding what action would be taken against quacks, psychiatrists, and doctors accused of providing reparative treatment and the penalties they will face, taking a cue from nations like Canada, which has outlawed conversion therapy. Education needs to lay the foundation. In addition to legislation that is more suited to the demands of a varied community than the Transgender Persons (Protection of Rights) Act, 2019, the transformation must occur on a societal level.

Karnataka government’s decision on reservation for transgenders

The Karnataka Government has determined that among the transgender applicants in each category of General Merit, SC, ST, and in each of the OBC categories, 1 percent of the vacancies to be filled in any services or posts by the State government will be provided.

The Karnataka government has submitted in a memo before the Karnataka High Court that the State of Karnataka has initiated steps to change the Karnataka Civil Services (General Recruitment) Regulations, 1977.

The memo was submitted by the government during the hearing of a petition from Sangama, an organisation that works to advance sexual minorities, sex workers, and HIV-positive individuals.

The petitioners argued that the state only identifies ‘Men’ and ‘Women’ as the genders that can apply for the openings in its appointment circular, calling for filling out the vacancies, citing the Supreme Court’s decision in the case of NALSA v. Union of India (2014). The age, weight and other data are only provided for ‘Men’ and ‘Women’ separately in the contested notification, with complete disregard for the ‘Third Gender.’

Is same-sex marriage legal in India

As we have discussed above, there has been a great development in India with regard to LGBTQI rights. As a result, in an honest effort to induce legislative reform, a series of petitions have been submitted in different High Courts of the nation, questioning the non-inclusion of marriage rights for LGBTQ+ couples in various statutes, ranging from the Hindu Marriage Act of 1955 to the Foreign Marriage Act of 1969. 

The Special Marriage Act of 1954, as well as its regulations, are determined to be discriminatory because they only recognise marriages between people of the opposite sex. Though the Act’s text does not specifically forbid homosexual partnerships, its terminology in Section 4 and Schedules 2 – 4 has a heterosexual undertone, as they depict marriage as a practice between a man and a woman or between a bride and a groom. This is especially true because of the Forms mentioned in the bare Act to Schedule Nos. 2 – 4 of the Act, which specify the format of the “Notice of Intention to Marry,” the declarations to be made by the parties to the marriage, and the marriage certificate, all employ heterosexual terminology. As a result, a homosexual cannot file for marriage solemnisation or registration under the law.

The institution of marriage confers particular rights and privileges on those who are married in society, and because of the aforementioned exclusion, homosexual couples are denied the same rights and privileges. Being married gives you the right to maintenance, inheritance, joint bank accounts, lockers, and the ability to name each other as a nominee in insurance, pension, and gratuity papers, among other things. Due to their exclusion from the institution of marriage, all of these are inaccessible to the LGBTQ community, making the exclusion even more discriminatory.

Violation of Article 21 of the Constitution

1. Non-recognition of same-sex marriages violates the right to marry a person of one’s choice as guaranteed to an individual in the cases of Common Cause v. Union of India (2018), Shafin Jahan v. Ashokan K.M (2018), and Shakti Vahini v. Union of India (2018).
2. Non-recognition of same-sex marriages violates the same-sex couples’ right to dignity as LGBT people and as a same-sex couple as guaranteed in the Puttuswamy and Navtej Singh Johar judgements.
3. Non-recognition of same-sex marriages is a violation of the right to life, which includes the right to companionship and sexual intimacy of homosexuals, as affirmed in the cases of Madhubala v. State of Uttarakhand (2020) and Soni Gerry v. Gerry Douglas (2018).
4. Non-recognition of same-sex marriages is against the integral rights guaranteed under Article 21.
5. Non-recognition of same-sex marriages is against the institution of marriage as per the Constitution as affirmed in the judgement of Joseph Shine v. Union of India (2019).

Violation of Article 19 of the Constitution of India

1. Denial of the institution of marriage to couples and refusal of the state to recognise and acknowledge homosexual marital unions are both criminal and constitutional violations of their right to freedom of expression protected by Article 19(1)(a) of the Indian Constitution as affirmed in the cases of Vikas Yadav v. State of UP (2016) and Asha Ranjan v. the State of Bihar (2017).
2. The challenged laws infringe on same-sex couples’ fundamental rights under Article 19(1)(c) of the Constitution by excluding them from the protection and recognition of the law when it comes to marital relationships.

Violation of Article 14 and Article 15 of the Constitution

1. The idea that a law that is manifestly arbitrary violates Article 14 of the Indian Constitution is well established by Shayara Bano v. Union of India (2017). 
2. Discrimination under Article 15(1) occurs when non-heterosexuals are denied the right to marry. Discrimination against nonheterosexuals includes both gender or sex discrimination and discrimination based on sexual orientation. 
3. Classifying the two groups of people, namely same-sex married couples and opposite-sex married couples, based on the partners’ sexual orientation amounts to treating equals as un-equals and violates Article 14 of the Indian Constitution.
4. Queer people are refused entry to business enterprises and public spaces without formal acknowledgement of their marriage, which is a violation of their Article 15(2) rights. They do not have the same rights as a married partner when it comes to privately accessed necessities and activities such as insurance, hospitalisation, and hotel booking. 

Violation of Article 25 of the Constitution

The failure of Indian marriage laws to recognise same-sex marriages violates same-sex spouses’ freedom of conscience. Article 25 of the Indian Constitution recognises freedom of conscience as a basic right that is not limited to religious considerations.

Violation of the Directive Principles of State Policy

Part IV of the Constitution imposes a duty on the state to follow certain governance principles, and many of these principles, when interpreted in the context of bringing equality and welfare to LGBTQI people, impose an obligation on the government to abolish discrimination against them. The state has a positive obligation under Article 38(2) of the Constitution to remove inequalities in status, facilities, and opportunities for its citizens. Article 39(a) requires the government to treat all citizens equally, whereas Article 44 encourages the government to create a standard civil code for all citizens. 

When the state’s mandated duties under Part IV of the Constitution are compared to the justiciable rights under Part III of the Constitution, it is clear that the State is powerless to deny homosexuals and other sexual minorities access to matrimony and that the State has a positive duty to protect these individuals from all forms of discrimination based on their sexual orientation or gender.

Conclusion

Though homosexuality was decriminalised in 2018 as a result of a Supreme Court verdict, other civil rights and liberties such as marriage, adoption, and insurance are still unavailable to both gays and transgender people. Usually, the way forward is the way ahead. However, more than four years after homosexuality was decriminalised, India’s government’s response to establishing LGBTQIA+ dignity has been a standstill, if not an attempt to go backwards, by pursuing dismissals of petitions seeking recognition of same-sex marriages under existing laws. Times are changing, and public morality is changing as well. Marriage should no longer be defined in terms of a man-woman relationship; instead, it should be regarded in broader terms as the civil status, state, or relationship of two people united in law for life. It’s past time to acknowledge that same-sex couples have the same constitutional right to marry and enjoy all the rights of a married couple as everyone else.