LEGALIZATION OF SAME-SEX MARRIAGE

Legalization of Same-sex Marriage

Author: Aman Verma, Bharati Vidyapeeth University.

Abstract

The LGBT community who suffered the most to carry on their relationships did not grant Constitutional sanctity to legally recognized as married couples and still the marriage between same-sex couples is an offense in the eyes of the Law. Due to their unnatural Love and affection, The LGBT community has faced a lot of struggles, warp and obstacles maintaining the dignity of their relationship. This article is all about the present condition of the LGBT group and why they don’t get any legal recognition for their married life.

Introduction

American Journalist Hendrik Hertzberg said that “Marriage should be between a spouse and a spouse, not a gender and a gender[1].” In the Earliest Time, in the history of India, when the Britishers were ruling the Ancient India, The British Raj had criminalized the homosexuals and heterosexuals in Section 377 of IPC which came into force in 1861. Out of the many clauses that were mentioned in Indian Constitution, most of them now Don’t have much relevance. One such clause in Section 377 of the Indian Penal Code that criminalizes any form of homosexual acts. This was introduced in the year 1860 during the British Rule in India. This clause held that forms of sexual intercourse that were “against the order of nature” are offenses against the law

Terminology

Anthropologists have struggled to describe a simple definition of marriage that absorbs different culture around the world. Many definitions have been introduced to recognize the existence of same-sex marriage in some cultures. Several countries have revised their marriage law to recognize same-sex marriage in the 21st century. The definition of all major English dictionaries has been revised for the word marriage to either drop gender specification or supplement them with secondary definitions to include gender-neutral language. The oxford dictionary has recognized same-sex marriage since 2000.

What is Section 377?

The section 377 of IPC was first introduced in the year 1861 during the British Administration of India. This section was recognized as “Unnatural offense” in IPC,1860. It means Whoever voluntarily commits carnal intercourse against the order of nature with any man, woman or animal, shall be punishable with imprisonment for life, or with the imprisonment which may extend to 10 years, and shall also be liable to pay a fine.

To prove the eligibility of section 377, it was said that “Penetration is adequate to forge the carnal intercourse”. Section 377 is always been a blow to the dignity of these people. Sometimes, the section 377 used to harass, blackmail and criminalize homosexuals over and over again. This also causes mental and psychological problems among these individuals. The ideology of Homosexuality in India remains Highly controversial.

The Naz Foundation first filed a writ petition against the issue of Section 377, which had approached in the Delhi high court in the year 2001. In the case of Naz Foundation vs Govt. of NCT India[2], the question was arrived if the section 377 of IPC should be removed? It was also added to the argument that the section 377 is violative to the Article 14 of the constitution because of unreasonable discrimination. The Delhi High Court, in its judgment, stated that “The part of section 377 which criminalize the homosexuality, shall be declared unconstitutional”. Though, the amendment part rested onto the parliament of India.

After the Delhi High Court Judgment in 2009, Another case Suresh Kumar Koushal and Anr. vs Naz Foundation[3] was arrived in the Supreme court of India.In this case. It was saidthat the homosexuality is a criminal offense, only parliament has the right to decriminalize it and courts can not interfere in its decision, and, the right to privacy will not cover homosexual acts.

Child rights activists have also criticized the verdict of Delhi High Court of decriminalizing homosexuality on the ground that section 377 was needed to tackle cases of child abuse, however, the enactment of Protection of Children from Sexual Offenses (POCSO) Act 2012 removed the importance of Section 377 as POCSO is more friendly to tackle child abuse and much stronger.

In case of NLSA vs Union of India, it was held that all existing laws of the Indian Constitution focus only on binary genders (male or female), and the rights of transgender individuals are not protected by any such provision. To deal with this loophole, The Supreme Court of India recognized multifaceted rights of the transgender community by stating that “Every gender (including man, woman and transgender) has been protected by the Article 14 of the Indian Constitution. It secured every single right of every single gender”. Further stated that, the Article 15 and 16 of the Indian Constitution prohibits the gender-based discrimination. So, if there is any discrimination performed on the ground of sexual orientation, then it will violate the Article 15 and 16. Moreover, the Article 19 protects privacy, gender, identity and integrity, so it indirectly includes section 377.

Same-Sex Marriage around the world

On a major scale, the Same-sex marriage is being performed and legally recognized by most of the developed and developing countries around the world at large. So far, more than 30 countries and territories have allowed gay and lesbian marriage, and given the rights to live their married life happily.

There is a list of the top most countries who have recently legalized the same-sex marriage[4]:-

Costa Rica

Costa Rica has become the first Central American country to adopt the practice of same-sex marriage and legalized it in May, 2020. The highest court of Costa Rica, in his jurisdiction, said that the law which bans the same-sex marriage shall be unconstitutional and would be nullified within 18 months.

Northern Ireland

Since October 2019, The Northern Ireland has been practicing same-sex marriage in the country at large.However, Northern Ireland is a constituent of the United Kingdom, it had been the last part of the UK where same-sex marriage was banned[5].

Taiwan

The Taiwan’s legislature had passed a bill on May 17, 2019 to give legal recognition to same-sex marriage and to make the island nation as the first country in Asia LBGT people to get married.

Australia

The Australian parliament had passed a legislation on Dec 5, 2017 to permit the same-sex marriage across the country. Besides New Zealand, Australia had become the 2nd country in the Asia-Pacific region to make this practice legal.

England and Wales

Queen Elizabeth II gave her assent on July 13, 2013 to a bill which legalizes same-sex marriage in the country at large. The reason behind that the Scotland and Northern Ireland are semi-autonomous and have separate legislative bodies to decide many domestic issues, including the definition of marriage.

Recent Case

Navtej Singh Johar vs Union of India[6]In This case, there was a petitioner Navtej Singh Johar. He was a part of the LGBT community. In 2016, a writ petition was filed by him in the Supreme Court to seek recognition for right to sexuality, right to choose a sexual partner to be part of the right to life which has been guaranteed in Article 21. In his petition, he argued that Section 377 was violative of Article 14 of the Constitution, which grants Right to Equality Before Law by stating that, it was Ambiguous in nature and it does not include or define “carnal intercourse” which is against the order of nature. The petitioner further stated that Section 377 also violates Article 15 of the Constitution by adding that it discriminated on grounds of sexual partner of a person. Moreover, Section 377 also gives adverse effect on Article 19 of the Constitution because it denied an individual the right to express one’s sexual identity via speech and choice.

In its jurisdiction, the Supreme Court overruled its decision which was given in case of Suresh Kumar Koushal vs Naz Foundation that upheld the constitutionality of Section 377. The Court reasoned that discrimination on the basis of Sexual orientation was violative of Article 14, 15, 19 and 21 of the Indian Constitution.

Conclusion

As Seen, the term “Same-sex marriage” have gone through a long journey to get the legal recognition from the Constitution of India. It is very much clear that throughout its history from British era, there were so many disputes regarding the rights of LGBT community to get married freely. In present scenario, almost every country around the world has been performing the practice of same-sex marriage to eradicate the gender inequality.  Though the consensual gay sex is legal in India, Same-sex couple still cannot marry each other as this practice didn’t get legally recognized by the Indian Law. In my perspective, the Government of India should pass a law legalizing gay marriage across the country give equal rights for their livelihood.


References

[1] Same-Sex Marriage Quotes, https://www.goodreads.com/quotes/tag/same-sex-marriage.

[2]Writ Petition, WP No. 7455/2001.

[3]2013, Civil Appeal No. 10972 of 2013.

[4] Same-sex marriage around the world, https://www.pewforum.org/fact-sheet/gay-marriage-around-the-world/.

[5] Same-sex marriage around the world, https://www.pewforum.org/fact-sheet/gay-marriage-around-the-world/

[6] Writ Petition, WP No. 76 of 2016.

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