Constitutional Validity Over LGBTQ Marriages In India

Introduction

In common sense, the LGBTQ community are the people who have the same sexual preferences towards their own gender. LGBTQ’s abbreviation is Lesbian, Gay, Bisexual, Transgender, and Queer. There are many articles in our Indian Constitution which protect the rights of LGBTQ.  But still, there are many people who were unaware of their own rights. LGBT marriage is legal in many countries.

But in India, it’s still debatable. Even though, various judgments have been passed by the Supreme court in this matter.

LGBT marriage didn’t affirm by society.  Because society assumes it’s against the order of nature.  The reason behind this frame of mind is that there is an extensive gap between the legislative and judicial development of LGBT law in India.[1]

Meaning Of LGBTQIA

The acronym of LGBT is the first letter ‘L’ which means ‘lesbian’ – women attracted towards another woman, the second letter ‘G’ which means ‘gay’ – men attracted towards another man, the third letter ‘B’ which means ‘bisexual’ – A person who have both male and female organs or they are attracted towards both male and female sexuality and the fourth letter ‘T’ which means ‘transgender’-

A person whose gender is different from the gender they were thought to be born in, the ‘Q’ means ‘Queer’ (questioning), the letter ‘I’ means ‘intersex’ and the last letter ‘A’ means agender.[2]

History Of LGBT

The ancient history the rig Veda contains the phrase vikriti Evam prakriti which literally means

“Unnatural is also natural”. According to the Kamasutra, lesbians were known as “swarinis” and they often got married and had kids together. The Khajuraho temple in Madhya Pradesh, which was constructed in 12^th century and is well known for its overt erotic sculpture, illustrating the presence of sexual fluidity between homosexuals, this is another striking illustrations.

During the Middle Ages, there was significant opposition to homosexuality. LGBT people are accepted by the culture but may not be by society.

Mubarak, the son of Alauddin khaliji and ruler of the Delhi sultanate from 1296 to 1316, was rumoured to be dating a nobleman in his court. The founder of the Mughal Dynasty, Babur, expressed his love for a young man named Baburi in writing. There were numerous incidences in noble class Mughals engaged in homosexual behaviour.

The sexual act, ‘against the order of nature’ including all homosexual acts, was made illegal in India in 1861, after the arrival of the British under section 377 of the Indian penal code.

The Catholic Church’s view that a sexual act performed for purposes other than reproduction was sinful had a significant impact on this.

In 1977, the first book on homosexuality was published in India by Shakuntala Devi, and titled “The world of homosexuals”.

The first all-India Hijra conference was called in Agra, soon after in 1987 and 50,000 members participated from all over the nations.

Hijiras received formal voting rights in 1994. The AIDS Bhedbhar virodhi Andolan filed the first petition Challenging section 377, in 1944 but it was rejected.[3]

Issues Faced By LGBT Community

1. By family
2. Conflict within the Family: When parents and LGBT children are unable to communicate, family strife is frequently the result. Many LGBT adolescents ended up in foster care, juvenile centres, or the streets.
3. Family opposition:

The majority of children who come out as gay, lesbian, bisexual, or transgender have negative family reactions, according to statistics. While some parents openly criticise their children, others advise them to keep quiet or consider conversion treatment, which can harm the children psychologically for the rest of their lives. Fear of rejection from their parents and the community causes young children to delay coming out as LGBT.[4]

By Society

LGBT people’s rights are violated in society, and they are not treated as members of it.

As a result of this rejection, they are forced into prostitution, human trafficking, and beggarly. LGBT people frequently experience job prejudice from other people. They experience prejudice not only at school but also in colleges. As a result, individuals become dependent on substances like alcohol and tobacco to cope with the stress that society places on them. Due to their gender, they also rejected opportunities in jobs, education, and even health care. They are unable to find suitable employment or higher pay. They are unable to obtain equal rights because others are gaining.

By Law

There are no direct provisions or any other enactment to protect the rights of the LGBT community and the cases are decided only by precedent judgements. LGBT marriages are recognized in the eye of the law by recent judgements passed by the judiciary but still, homosexual people attain limited rights and benefits as a couple when compared to heterosexual marriages and now A bill is introduced in 2022 to the Lok Sabha regarding the same.

SEC 377 OF IPC  

Sec 377 of IPC defines that any intercourse against the order of nature with any man, woman and animal will be imprisoned for a lifetime or at least 10 years imprisonment and also liable to pay a fine.

The nature of this sec denied and infringes the fundamental rights of an individual which is provided by the constitution of India. Art 14 ,15,19,21, is considered the foundation of the constitution which provides the  rights

• The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
• Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth
• Right to Expression
• Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law

Penalizing sexual intercourse of homosexuality apparently violates these constitutional rights which are mentioned above.

There are many petitions which are filed as writ petitions or PIL across the country to decriminalize sec 377. There are many landmark judgements by the supreme court in which it was concluded as unconstitutional.[5]

Judicial Review

Naz Foundation v. Govt of NCT of Delhi;[6] 

Naz foundation challenged sec 377 of IPC under 14,15,19,21 of the constitution of India before the Delhi High Court. They claimed that the police were using this provision as a weapon to punish consensual sex acts that are not pe-no-vaginal. In 2008, the Delhi High court ruled that section 377 cannot be used to penalize or cannot be used to punish homosexuals who have their consent to sex. It violates Article 14,15,19,21.

Many organizations challenged the judgement of the High court in the Supreme court and argued that the right to privacy & right to Expression does not include the right to commit the offence. If sec 377 was decriminalized and became constitutional then it would be a great humiliation for instituting marriages and it will attract young people to commit homosexual activities.  

Suresh Kumar Koushal & Anr v. Naz Foundation & Ors ;[7] 

The supreme court reversed the judgement of the Delhi High court in the Suresh Koushal case and stated that the right to decriminalize sec 377 is in the hands of parliament and not the court. Additionally, it made reference to the LGBT community’s extremely small population and the fact that very few of them had faced charges under sec 377 of IPC. Many curative petitions were filed to challenge the judgement of the supreme court.

The curative petition against the Suresh Koushal case is pending. While five individuals from the LGBT community namely Navtej Singh johar, Ritu Dalmia, Ayesha Kapur, Aman Nath, Sunil Mehra filed a writ petition to set aside or decriminalize sec 377 for homosexual people.

Even though the curative petitions were still pending, the Supreme  Court on January 5^th, 2018, established a Constitution Bench to hear the challenge to Section 377 in its entirety. This might be a result of the observations made in the nine-judge decision in the Right to Privacy case, which suggested that the reasoning and judgement in Suresh Koushal were fundamentally flawed. The 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.

Navtej Singh Johar v. Union of India ;[8] 

Section 377 of the Indian Penal Code was largely overturned on September 6, 2018, decriminalizing same-sex relationships between consenting adults. LGBT people can now have consenting relationships under the law. The Court has upheld Section 377’s prohibitions against nonconsensual acts and animal sexual acts.

The Recognition Of the LGBT Community In International Extents

The range of acceptable levels has widened during the last ten years. Acceptance levels have fallen in the nations that are the least tolerant. Since 1980, the average degree of acceptance has risen globally.

Since 1980, there has been an increase in acceptance in 56 of 175 nations and regions. A drop was seen in 57 nations and regions. 62 nations and regions showed no change.[9]

Regionally speaking, Western Europe and North America have the highest levels of acceptability towards homosexuality. However, there is more disagreement among Central and Eastern Europeans, with a median of 46% believing homosexuality should be tolerated and 44% saying it should not.

However, few people in sub-Saharan Africa, the Middle East, Russia, and Ukraine believe that homosexuality should be accepted by society; South Africa (54%) and Israel (47%) are the only regions where more than a quarter share this opinion.

There is little agreement on the issue among people in the Asia-Pacific area. In Australia, 81% of respondents agree that homosexuality should be welcomed, as do 73% of Filipino respondents. Only 9% of Indonesians concur, meanwhile.

In a survey, it was stated that 22 out 34 countries, the level of acceptance of the LGBT community is more significant among younger adults.[10]

Whether LGBT Marriages are legal or illegal in India?

Many developed countries accepted the concept of LGBT marriages but a same equal number of countries are still against this concept. The answer to the question “whether LGBT Marriages are legal in India”? Obviously yes, it is legal in India. In Navtej Singh Johar vs Union of India held that sec 377 of IPC decriminalized the same-sex relationships between consenting adults and LGBT people can now have consenting relationships under the law.

LGBT Marriages are now legally recognized by the law but it is still debatable across the country because there are no direct provisions for the LGBT community to enjoy as same the rights which are enshrined in law for heterosexual people. But the judiciary became more conscious and flexible while deciding the cases without infringing any rights of an individual.

A bill to legalise same-sex marriage under the Special Marriage Act was introduced to the Lok Sabha by Nationalist Congress Party MP Supriya Sule on April 1, 2022. The plan would change a number of Act provisions to give same-sex couples the same legal protections as opposite-sex spouses. The proposed law would set the legal age of marriage at 21 for heterosexual couples and 18 for lesbian couples.

DNV Senthilkumar S, a member of the Dravida Munnetra Kazhagam (DMK), also introduced a private member’s bill that addressed giving the LGBTQIA community rights so they could live with dignity.[11]

In the view of society, LGBT marriages are considered a humiliation and misfortune to their cultural norms and they believe that it is “against the order of nature”.  LGBTQIA individuals do not possess any rights like heterosexual couples to possess marital rights.

Shafin Jahan V. Asokan K.M and others[12], In this case, the SC held by referring to Article 16 of UDHR and Puttaswamy case that the right to marry any person is their fundamental right under Article 21 of the Indian Constitution. Article 16(2) states that any person cannot be discriminated against on the grounds of religion, race, caste, sex and place of birth, residence or any of them.

Conclusion

Despite the fact that there are numerous government and non-governmental organizations that promote the LGBT community, it continues to face discrimination on account of the lack of support in schools and universities, hostility from families, and other factors.  People need to open their eyes to realize that it is also a creation of nature and that they are also a part of this society.  The phrase that it is against the order of nature is what started the whole confusion.

References

1. LGBT Rights In India , Legalserviceindia.com, http://www.legalserviceindia.com/legal/article7932-lgbt-rights-html, last visited- 23/01/2023
2. A brief history of LGBTQ+ in India, http://newsletter.sscbs.du.ac.in, last visited 24.1.2023
3. Rights of LGBT community in India, jatinverma.org, https://www.jatinverma.org/rightsof-lgbt-community-in-india, last visited – 24.1.2023
4. Same sex marriage: The current conflict and the way forward, livelaw.in, https://www.llivelaw.in/columns/same-sex-marriage-supreme-court-lgbtqiacommunityfundamental-rights-article-14-217731, last visited- 24.1.2023
5. Constitutionality of section 377 of IPC, https://www.scobserver.in/cases/navtej-singh-johar-v-union-of-india-constitutionality-of-section-377-ipc-background/
6. 2 WP ( C ) No. 7455/2001, Delhi High Court; Decision on 2^nd July 2009
7. (2014) 1 SCC 1
8. AIR 2018 SC 4321
9. The Global Divide on Homosexuality Persists, http://www.pewresearch.org/global/2020/06/25/glonal-divide-on-homosexuality-persists/ , last visited- 24.1.2023
10. Social Acceptance of LGBTI People in 175 Countries and Locations, https://williaminstitute.law.ucla.edu/publications/global-acceptance-index-lgbt/, last visited- 23.1.2023
11. https://www.hindustantimes.com/india-news/ncp-mp-supriya-sule-introduces-bill-in-parl-onlegislising-same-sex-marriage-html, last visited – 22.1.2023
12. CriminalNo. 366 of 2018

By: Subraja L. and Sri Suyambarasi G., students at Bishop cotton women’s Christian Law College, Bangalore.