Baba’s Explainer – Toward legalising same-sex marriage

• Section 377 of the Indian Penal Code 1860, a relic of British India, states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished.”
  • This included private consensual sex between adults of same sex.
• In Navtej Singh Johar vs. Union Of India (2018), the SC decriminalised homosexuality.
  • SC dismissed the position taken by SC in Suresh Kumar Koushal case (2013) that the LGBTQ community constitute a minuscule minority and so there was no need to decriminalise homosexual sex.
• SC Navtej Singh judgment apologised to the LQBTQ+ community for the wrongs of history and had also stated: “Sexual orientation is natural. Discrimination on the basis of sexual orientation is violation of freedom of speech and expression”.
• It had noted that homosexuals had the right to live with dignity and were “entitled to protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them.” It had stated that a person’s bodily autonomy be constitutionally protected and that sharing intimacy in private with a person of choice formed a part of the individual’s right to privacy.
• In the NALSA vs Union of India judgment (2014), the Court had said that non-binary individuals were protected under the Constitution and fundamental rights such as equality, non-discrimination, life, freedom and so on could not be restricted to those who were biologically male or female.
• In Justice K.S. Puttaswamy vs. Union of India (2017), SC ruled that Fundamental Right to Privacy is intrinsic to life and liberty and thus, comes under Article 21 of the Indian constitution. SC declared that bodily autonomy was an integral part of the right to privacy. This bodily autonomy has within its ambit sexual orientation of an individual.

Naz Foundation vs. Govt. of NCT of Delhi (2009)

• It is one of the first case laws wherein Section 377 of the IPC was held unconstitutional, as it discriminated against the LGBTQ community of the country and violated their privacy as individuals.
• The Landmark judgment given by Delhi High Court stated that Section 377 violates Articles 14, 15, and 21. The court concluded that Section 377 does not distinguish between public and private acts, or between consensual and non-consensual acts.
• The judgment was restricted to adults when Section 377 also applied to minors. Section 377 had permitted the harassment of LGBT people in law.

Suresh Kumar Koushal Case (2013)

• SC overturned the previous judgment by Delhi High Court (2009) that decriminalised homosexual acts and criminalised homosexuality once again.
• SC argued that in 150 years, less than 200 persons had been prosecuted under Section 377.
• Therefore, “plight of sexual minorities” could not be used as argument for deciding constitutionality of law.
• Further, SC ruled that it was for the legislature to look into desirability of deleting section 377 of IPC.
• The judgement in Suresh Kumar Koushal case was overturned by SC in Navtej Singh Johar case of 2018.

• The non-recognition of marriage between LGBTQ persons violated the fundamental rights of liberty, equality, life and freedom of expression guaranteed to them by the Supreme Court (Abolition of #377)
• Even the Human Rights Charter [Article 16] recognises the ‘right to marry’ as a universal right. Seeking this right to extend to homosexual couples as well is neither too complicated nor unjust.
• Also, the debate over same-sex marriages is more of morality than on law.
• Sexual orientation could not be grounds for discrimination.

• Not compatible with Indian Family Concept:Living together as partners and having sexual relationship by same-sex individuals is not comparable with the Indian family unit concept of a husband, a wife and children.
• Not Codified: Marriage between two individuals of the same gender is “neither recognised nor accepted in any uncodified personal law or any codified statutory law”.
• Issue with Personal Laws:Any interference with the existing marriage laws would cause complete havoc with the delicate balance of personal laws in the country. It may lead to further anomalies with laws governing marriages of persons belonging to the Christian or Muslim faith.
• No Fundamental Right to same-sex marriage: Supreme Court judgment in the Navtej Singh Johar case “does not extend the right to privacy to include a fundamental right in the nature of a right to marry by two individuals of same gender”.
• Legislative Challenges: Any other interpretation except treating ‘husband’ as a biological man and ‘wife’ as a biological woman will make all statutory provisions unworkable. In a same sex marriage, it is neither possible nor feasible to term one as ‘husband’ and the other as ‘wife’ in the context of legislative scheme of various statute
• Domain of Legislature:The considerations of “societal morality” are relevant in considering the validity of a law and it is for the Legislature to enforce such societal morality and public acceptance based upon Indian ethos.

• A total of 32 countries around the world have legalised same-sex marriages, some through legislation while others through judicial pronouncements. Many countries first recognised same-sex civil unions as the escalatory step to recognise homosexual marriage.
• Civil unions or partnerships are similar arrangements as marriages which provide legal recognition of unmarried couples of the same or opposite sex in order to grant them some of the rights that come with marriage — such as inheritance, medical benefits, employee benefits to spouses, managing joint taxes and finances, and in some cases even adoption.
• The Netherlands was the first country in 2001 to legalise same-sex marriage by amending one line in its civil marriage law.
• In 2005, South Africa’s Constitutional Court ruled in favour of Same Sex marriage which led to amendment in legislation giving legal recognition to same sex marriages
• In England and Wales, the Marriage (Same Sex Couples) Act 2013 enabled same-sex couples to marry in civil ceremonies or with religious rites.
• Australia passed a law in 2007 to provide equal entitlements for same-sex couples in matters of, inter alia, social security, employment and taxation.
• In 2015, the Supreme Court of the USA in Obergefell vs Hodges case decided that the fundamental right to marry is guaranteed to same-sex couples.