Editorial

Introduction

• The legal recognition of same sex marriage in India is under consideration before the Supreme Court.
• In the debate of its legal recognition, Central Government contended that same sex marriage as a fundamental right under the Constitution of India, 1950 is contrary to the Indian Family Units.
  • The Government further stated that entrusting a licit validation to such a union will create a scenario of complete havoc as the Indian society accepts a union of a biological man and a biological woman.
  • Central Government added that such marriages are not listed in any codified personal law.

Rulings for safeguarding LGBTQIA+ Rights

• Naz Foundation & Ors., v. Government of NCT of Delhi (2009)
  • The Naz Foundation is a trust which filed a case questioning the validity of Section 377 of the Indian Penal Code, 1860 (IPC).
  • The Delhi High Court in the year 2009 stated that consensual sexual intercourse between two adults is valid in the eyes of the law.
    • Any punishment for such act would be violative Article 21 of the Constitution of India and Article 14.
• Suresh Kumar Kaushal v. Union of India (2013)
  • The court in 2013 reversed the judgment in the Naz Foundation case.
  • The bench opined that the court cannot decriminalize homosexuality, Parliament by law has the power to do so.
• National Legal Services Authority v. Union of India (2014)
  • The Apex Court recognized the right to self-identification and legal recognition of gender identity for LGBTQ+.
• Navtej Singh Johar v. Union of India (2018)
  • On 6th September 2018, a five-judge bench of Chief Justice of India (CJI) Dipak Misra, Justices Rohington Nariman, D Y Chandrachud, A M Khanwilkar and Indu Malhotra partially decriminalized Section 377 of the IPC.
    • Section 377 of IPC criminalizes Unnatural Offences.
  • The provision was decriminalized to the extent it was criminalizing homosexual relations.
  • The bench found it violative of freedom of expression under Article 19(1)(a) and right to life and personal liberty under Article 21 of the Constitution of India, 1950.
• Shafin Jahan v. K.M. Asokan (2018)
  • The Apex Court in this case held that the validity of the marriage cannot be decided by the court of law in the case of major individuals.
  • The right to marry is not expressly mentioned under the Constitution of India but its interpretation can be guided by Article 21 which provides for the right to life and personal liberty.

Right to Privacy of LGBTQIA+

• Right to Privacy was considered as an attribute of Right to Life and Personal Liberty under Article 21 of the Constitution of India, 1950 in the case of Justice K S Puttaswamy & Anr. v. Union of India & Ors. (2017).
• The term ‘person’ in Article 21 denotes that person belonging to LGBTQ+ community is covered in its ambit.
  • Hence, they are equally entitled to avail their Right to Privacy.
• In 2017, Justice D Y Chandrachud stated that sexual orientation is an essential attribute of Right to Privacy.

Some of the Key Events Related to Same Sex Marriage

• In the 1990s, the first LGBTQIA+ organization that is AIDS Bhedbhav Virodhi Andolan (ABVA), was founded in Delhi to combat discrimination against the LGBTQIA+ community.
• The Protection of Women from Domestic Violence Act, 2005, is gender-neutral legislation and includes queer couples.
• The Transgender Persons (Protection of Rights) Act, 2019 was passed, as an Act to provide for protection of rights of transgender persons and their welfare and for matters connected therewith and incidental thereto.
• In May 2023, the Constitution bench comprising CJI D Y Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha reserved its judgement in the batch of petitions seeking marital equality for same sex couples in India.

Way Forward

• Though the legal fraternity is actively indulged in bringing evolution in the context of the Rights of LGBTQIA+, there is a need for a long-lasting approach to deal with the issue of prejudice and discrimination prevalent in society against them.
• The judiciary can entrust the right to equality to the LGBTQIA+ community by concluding this ongoing debate on the recognition of same sex marriage.
• Each aspect of their rights related to health, sexual orientation, and participation parallel with society is to be promulgated into an unvague manner.
• Also, the legislature must actively participate in implementing the outlook of the judiciary upon the matter in issue by passing an Act or inserting some new provisions in existing law which will specifically talk about the rights of the LGBTQIA+ community.