Critical Analysis of Same Sex Marriage
Gay marriage - it's not about two people being gay: it's about two people who
love each other and who have decided to commit to each other for the exact same
reasons any other couple would get married.
If we talk about marriage, it is a union between two individual (who become and husband and wife) or we can say that it is the process by which two people make their relationship, public, official and permanent.
But now the society today tends to stick to what they know and hold on to the familiar as most of the people consider homosexuality a sin it further weakens the traditional values essential to our society and this could be the reason that when any unfamiliar comes along the society resists acceptance, instead they dismiss the issue by denying its existence. Unfortunately, gay marriage is one of the issues where society refuses to accept or to deal with it and this may all because of they don't know how to approach it or for whatever reason the society has chosen to ban gay marriage.[1]
The parents were the ones who chose who their children are going to marry based on a person character, family background and therefore same sex marriage is new to us all.
Same sex marriage (LGBT), also known as gay marriage, is a marriage between the people of the same sex, either as a secular civil ceremony or in a religious setting and LGBT citizens in India face many difficulties as society refuses to accept them, maybe because of the manner they live and since we all are entitled to many constitutional rights and are also protected by the constitution of the India but LGBT people they are not entitled to some of the constitutional rights such as article 14 which talks about Right To Equality Before Law, article 15 which talks about Protection from Discrimination and Article 19 which talks about freedom of expression and also Right to life.[2]
Facts of the Case:
The central issue of the case was the constitutional validity of Section 377 of the Indian Penal Code, 1860 (Section 377) insofar as it applied to the consensual sexual conduct of adults of the same sex in private.
The issue in the case originated in 2009 when the Delhi High Court, in the case of Naz Foundation v. Govt. of N.C.T. of Delhi[3], held Section 377 to be unconstitutional.
In 2014, a two-judge bench of the Supreme Court, in the case of Suresh Kumar Koushal v. Naz Foundation[4], overturned the Delhi HC decision and granted Section 377 "the stamp of approval".
When the petition in the present case was filed in 2016 challenging the 2014 decision, a three-judge bench of the Supreme Court opined that a larger bench must answer the issues raised. As a result, a five-judge bench heard the matter.[5]
The Petitioner in the present case, Navtej Singh Johar, a dancer who identified as part of the LGBT community, filed a Writ Petition in the Supreme Court in 2016 seeking recognition of the right to sexuality, right to sexual autonomy and right to choose a sexual partner to be part of the right to life guaranteed by Art. 21 of the Constitution of India (Constitution)[6].
Among other things, the Petitioner further argued that:
Issues Raised:
The five-judge Bench (Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice DY Chandrachud and Justice Indu Malhotra), partially struck down Section 377 IPC, de- criminalizing same-sex relations between consenting adults. The Court has upheld provisions in Section 377 that criminalize non-consensual acts or sexual acts performed on animals.
The four judges unanimously cited fundamental rights violations in reading down Section 377. They found that Section 377 discriminates against individuals on the basis of their sexual orientation and/or gender identity, violating Articles 14 and 15 of the Constitution. Further, they ruled that Section 377 violates the rights to life, dignity and autonomy of personal choice under Article 21. Finally, they found that it inhibits an LGBTQ citizen's ability to fully realize their identity, by violating the right to freedom of expression under Article 19(1)(a). [9]
Justice Malhotra spoke about the fundamental right to health, which flows from the right to life in Article 21. She pointed out that the stigma associated with being LGBT forces LGBT individuals to live closeted lives. This, in turn, denies LGBT individual access to adequate healthcare. She expressed grave concern about the high incidence of HIV/AIDS and other sexually transmitted diseases in LGBT communities across India.[10]
Judgment Analysis:
A democratic Constitution like ours is an organic and breathing document with senses which are very much alive to its surroundings, for it has been created in such a manner that it can adapt to the needs and developments taking place in the society. Constitution is a living, integrated organism having a soul and consciousness of its own and its pulse beats. Thus, we are required to keep in view the dynamic concepts inherent in the Constitution, and amend our laws in a way which will cater to the needs of society.[11]
Section 377 of the IPC bears the heading "unnatural offences" and it penalizes carnal intercourse which is against the order of "nature". Some of the judges, therefore, asked themselves what was meant by the word "natural". Chief Justice Misra and Justice Malhotra held that a person's sexual orientation itself is natural. Justice Chandrachud wrote that there are shortcomings in the conceptual categories of "natural" and "unnatural", merely because something is natural does not mean that it is desirable (e.g., death), and just because something is unnatural (e.g., a heart transplant) doesn't mean that it ought to be criminal.[12] Keeping this in mind a change was in order and it is necessary to commend the supreme court on its judgement.[13]
Under the classification test, a law falls foul of Article 14 if it either classifies people into categories without applying an intelligible differentia, or if the object sought to be achieved by the law doesn't bear any rational nexus with the intelligible differentia.
In many spheres, the sexual minorities have been accepted. They have been given space after the NALSA judgment but the offence punishable under Section 377 IPC, as submitted, creates a chilling effect.
Two judges found that it violates the right to health, because the criminalization of homosexual intercourse makes members of the LGBTQ community hesitate to seek medical advice and that they are therefore more susceptible to sexually transmitted.[14]
However, Section 377 of the IPC has not entirely been struck down. The judgment does not advert to the distinction between consenting adults engaging in sexual intercourse, and sexual acts which are without the will, or consent of the other party. A distinction has to be made between consensual relationships of adults in private, whether they are heterosexual or homosexual in nature.
Just like other fundamental rights, the right to privacy is not an absolute right and is subject to reasonable restrictions. Any restriction on the right to privacy must adhere to the requirements of legality, existence of a legitimate state interest, and proportionality.[15]
The mere fact that the LGBTQ citizens constitute a "minuscule fraction" of the country's population cannot be a ground to deprive them of their Fundamental Rights guaranteed by Part III of the Constitution. Even though the LGBT constitutes a sexual minority, members of the LGBT community are citizens of this country who are equally entitled to the enforcement of their Fundamental Rights guaranteed by Articles 14, 15, 19, and 21.[16]
Current Scenario on Same Sex Marriage:
India's Supreme Court is hearing the final arguments in a historic group of petitions to legalize same- sex marriage. There are many cases that have been bought by the LGBTQ couples and they are being opposed by the government of Prime Minister Narendra Modi. The main motive of these petitions is, the right to marry a person of one's own choice should also be extended to LGBTQ citizens as well. India's government put its LGBTQ population at 2.5 million in 2012, and more recent global estimates say it could be at least 10% of the country, or more than 135 million people[17].
The same court granted certain rights to the transgender community in 2014, declared privacy a Constitutional right in 2017, decriminalized gay sex in 2018 and also expanded provisions for "atypical" families in 2022. A favourable decision in this case, would make India the 35th country worldwide and the second place in Asia to allow marriage equality, after the parliament of Taiwan passed a bill in 2019.[18]
India's socially conservative government is against the legalization of same-sex marriage, and questions whether the court (as opposed to parliament) has the right to decide it at all. They say that if legalized, same-sex marriages will dilute the concept of marriage, which is a stable institution, as per them and bring in a free-floating system that will be harmful, according to them, to the social order.[19]
Indian attitudes towards LGBTQ people have grown more tolerant in recent years. The Pew Research Centre found that 37% of Indian people said homosexuality should be accepted by society in 2019, a large jump from just 15% in 2014. Plaintiffs have tried to bring the issue of marriage equality before the country's top court since 2020. Last year a growing number of petitions to legalize same-sex marriage made their way to city courts and the Supreme Court, which decided to bundle them together into the case it's hearing now.
Conclusion:
We are becoming diversely knowledgeable therefore we have to adjust traditions to match the world we live in today and the knowledge we have and if not adjust traditions we shall make new traditions. In being able to adjust traditions and come up with new traditions we shall become more accepting of same sex marriage.
So, if we are denying the basic rights to a considerable segment of our society then we are deviating from what we promised to us. LGBTQ citizens have their own individuality as other people have. And it is a stereotypical thought which prohibits an individual from exercising his/her right and such thought should be quashed.
The society is not ready to accept the things which they had never seen, that may be the reason why society is recognizing the LGBT community. But they do not opt to be what they are and even if they are of different kind, what is problem in it. Though their relationship does not lead to any reproduction, but that cannot be a reason to prohibit such type of relationship.
We have to stop and consider this people as they are not doing anything wrong, they are just being who they are. LGBTQ citizens cannot help the way they feel and also, they did not choose to be that way, they were born in that way. There are 13 countries where same sex marriage is accepted and what must be considered is that each and every one of us have our own feelings and we have the right to express it until it affects others life.
And by denying same sex marriage we are discriminating with LGBTQ citizens. We are always enforcing equality in our society and yet we are not treating LGBTQ citizens equally, by not allowing them to marry or receive benefits that any traditional couples will receive when they marry.
References
Statute(s):
Written By: Niharika Kohli, 3rd Year BBA LL. B (Hons.) (Corporate Law) School of Law
If we talk about marriage, it is a union between two individual (who become and husband and wife) or we can say that it is the process by which two people make their relationship, public, official and permanent.
But now the society today tends to stick to what they know and hold on to the familiar as most of the people consider homosexuality a sin it further weakens the traditional values essential to our society and this could be the reason that when any unfamiliar comes along the society resists acceptance, instead they dismiss the issue by denying its existence. Unfortunately, gay marriage is one of the issues where society refuses to accept or to deal with it and this may all because of they don't know how to approach it or for whatever reason the society has chosen to ban gay marriage.[1]
The parents were the ones who chose who their children are going to marry based on a person character, family background and therefore same sex marriage is new to us all.
Same sex marriage (LGBT), also known as gay marriage, is a marriage between the people of the same sex, either as a secular civil ceremony or in a religious setting and LGBT citizens in India face many difficulties as society refuses to accept them, maybe because of the manner they live and since we all are entitled to many constitutional rights and are also protected by the constitution of the India but LGBT people they are not entitled to some of the constitutional rights such as article 14 which talks about Right To Equality Before Law, article 15 which talks about Protection from Discrimination and Article 19 which talks about freedom of expression and also Right to life.[2]
Facts of the Case:
The central issue of the case was the constitutional validity of Section 377 of the Indian Penal Code, 1860 (Section 377) insofar as it applied to the consensual sexual conduct of adults of the same sex in private.
The issue in the case originated in 2009 when the Delhi High Court, in the case of Naz Foundation v. Govt. of N.C.T. of Delhi[3], held Section 377 to be unconstitutional.
In 2014, a two-judge bench of the Supreme Court, in the case of Suresh Kumar Koushal v. Naz Foundation[4], overturned the Delhi HC decision and granted Section 377 "the stamp of approval".
When the petition in the present case was filed in 2016 challenging the 2014 decision, a three-judge bench of the Supreme Court opined that a larger bench must answer the issues raised. As a result, a five-judge bench heard the matter.[5]
The Petitioner in the present case, Navtej Singh Johar, a dancer who identified as part of the LGBT community, filed a Writ Petition in the Supreme Court in 2016 seeking recognition of the right to sexuality, right to sexual autonomy and right to choose a sexual partner to be part of the right to life guaranteed by Art. 21 of the Constitution of India (Constitution)[6].
Among other things, the Petitioner further argued that:
- Section 377 was violative of Art. 15 of the Constitution (Protection from Discrimination) since it discriminated on the basis of the sex of a person's sexual partner;
- Section 377 had a "chilling effect" on Article 19 (Freedom of Expression) since it denied the right to express one's sexual identity through speech and choice of romantic/sexual partner; and
- Section 377 violated the right to privacy as its subjected LGBT people to the fear that they would be humiliated or shunned because of "a certain choice or manner of living."[7]
Issues Raised:
- Was the rationale of the Supreme Court judgment in the Suresh Kaushal case sound in its understanding of morality as social morality
- Whether Section 377 violates Article 14 and 15 by allowing discrimination on the basis of "sexual orientation" and "gender identity"?
- Whether Section 377 violates right to autonomy and dignity under Article 21 by penalizing private consensual acts between same-sex persons?
- Whether Section 377 violates the fundamental right to expression under Article 19(1)(a) by criminalizing the gender expression of persons belonging to the LGBTQ+ community?[8]
The five-judge Bench (Chief Justice Dipak Misra, Justice Rohinton Nariman, Justice DY Chandrachud and Justice Indu Malhotra), partially struck down Section 377 IPC, de- criminalizing same-sex relations between consenting adults. The Court has upheld provisions in Section 377 that criminalize non-consensual acts or sexual acts performed on animals.
The four judges unanimously cited fundamental rights violations in reading down Section 377. They found that Section 377 discriminates against individuals on the basis of their sexual orientation and/or gender identity, violating Articles 14 and 15 of the Constitution. Further, they ruled that Section 377 violates the rights to life, dignity and autonomy of personal choice under Article 21. Finally, they found that it inhibits an LGBTQ citizen's ability to fully realize their identity, by violating the right to freedom of expression under Article 19(1)(a). [9]
Justice Malhotra spoke about the fundamental right to health, which flows from the right to life in Article 21. She pointed out that the stigma associated with being LGBT forces LGBT individuals to live closeted lives. This, in turn, denies LGBT individual access to adequate healthcare. She expressed grave concern about the high incidence of HIV/AIDS and other sexually transmitted diseases in LGBT communities across India.[10]
Judgment Analysis:
A democratic Constitution like ours is an organic and breathing document with senses which are very much alive to its surroundings, for it has been created in such a manner that it can adapt to the needs and developments taking place in the society. Constitution is a living, integrated organism having a soul and consciousness of its own and its pulse beats. Thus, we are required to keep in view the dynamic concepts inherent in the Constitution, and amend our laws in a way which will cater to the needs of society.[11]
Section 377 of the IPC bears the heading "unnatural offences" and it penalizes carnal intercourse which is against the order of "nature". Some of the judges, therefore, asked themselves what was meant by the word "natural". Chief Justice Misra and Justice Malhotra held that a person's sexual orientation itself is natural. Justice Chandrachud wrote that there are shortcomings in the conceptual categories of "natural" and "unnatural", merely because something is natural does not mean that it is desirable (e.g., death), and just because something is unnatural (e.g., a heart transplant) doesn't mean that it ought to be criminal.[12] Keeping this in mind a change was in order and it is necessary to commend the supreme court on its judgement.[13]
Under the classification test, a law falls foul of Article 14 if it either classifies people into categories without applying an intelligible differentia, or if the object sought to be achieved by the law doesn't bear any rational nexus with the intelligible differentia.
In many spheres, the sexual minorities have been accepted. They have been given space after the NALSA judgment but the offence punishable under Section 377 IPC, as submitted, creates a chilling effect.
Two judges found that it violates the right to health, because the criminalization of homosexual intercourse makes members of the LGBTQ community hesitate to seek medical advice and that they are therefore more susceptible to sexually transmitted.[14]
However, Section 377 of the IPC has not entirely been struck down. The judgment does not advert to the distinction between consenting adults engaging in sexual intercourse, and sexual acts which are without the will, or consent of the other party. A distinction has to be made between consensual relationships of adults in private, whether they are heterosexual or homosexual in nature.
Just like other fundamental rights, the right to privacy is not an absolute right and is subject to reasonable restrictions. Any restriction on the right to privacy must adhere to the requirements of legality, existence of a legitimate state interest, and proportionality.[15]
The mere fact that the LGBTQ citizens constitute a "minuscule fraction" of the country's population cannot be a ground to deprive them of their Fundamental Rights guaranteed by Part III of the Constitution. Even though the LGBT constitutes a sexual minority, members of the LGBT community are citizens of this country who are equally entitled to the enforcement of their Fundamental Rights guaranteed by Articles 14, 15, 19, and 21.[16]
Current Scenario on Same Sex Marriage:
India's Supreme Court is hearing the final arguments in a historic group of petitions to legalize same- sex marriage. There are many cases that have been bought by the LGBTQ couples and they are being opposed by the government of Prime Minister Narendra Modi. The main motive of these petitions is, the right to marry a person of one's own choice should also be extended to LGBTQ citizens as well. India's government put its LGBTQ population at 2.5 million in 2012, and more recent global estimates say it could be at least 10% of the country, or more than 135 million people[17].
The same court granted certain rights to the transgender community in 2014, declared privacy a Constitutional right in 2017, decriminalized gay sex in 2018 and also expanded provisions for "atypical" families in 2022. A favourable decision in this case, would make India the 35th country worldwide and the second place in Asia to allow marriage equality, after the parliament of Taiwan passed a bill in 2019.[18]
India's socially conservative government is against the legalization of same-sex marriage, and questions whether the court (as opposed to parliament) has the right to decide it at all. They say that if legalized, same-sex marriages will dilute the concept of marriage, which is a stable institution, as per them and bring in a free-floating system that will be harmful, according to them, to the social order.[19]
Indian attitudes towards LGBTQ people have grown more tolerant in recent years. The Pew Research Centre found that 37% of Indian people said homosexuality should be accepted by society in 2019, a large jump from just 15% in 2014. Plaintiffs have tried to bring the issue of marriage equality before the country's top court since 2020. Last year a growing number of petitions to legalize same-sex marriage made their way to city courts and the Supreme Court, which decided to bundle them together into the case it's hearing now.
Conclusion:
We are becoming diversely knowledgeable therefore we have to adjust traditions to match the world we live in today and the knowledge we have and if not adjust traditions we shall make new traditions. In being able to adjust traditions and come up with new traditions we shall become more accepting of same sex marriage.
So, if we are denying the basic rights to a considerable segment of our society then we are deviating from what we promised to us. LGBTQ citizens have their own individuality as other people have. And it is a stereotypical thought which prohibits an individual from exercising his/her right and such thought should be quashed.
The society is not ready to accept the things which they had never seen, that may be the reason why society is recognizing the LGBT community. But they do not opt to be what they are and even if they are of different kind, what is problem in it. Though their relationship does not lead to any reproduction, but that cannot be a reason to prohibit such type of relationship.
We have to stop and consider this people as they are not doing anything wrong, they are just being who they are. LGBTQ citizens cannot help the way they feel and also, they did not choose to be that way, they were born in that way. There are 13 countries where same sex marriage is accepted and what must be considered is that each and every one of us have our own feelings and we have the right to express it until it affects others life.
And by denying same sex marriage we are discriminating with LGBTQ citizens. We are always enforcing equality in our society and yet we are not treating LGBTQ citizens equally, by not allowing them to marry or receive benefits that any traditional couples will receive when they marry.
References
Statute(s):
- Constitution of India
- 'NAVTEJ SINGH JOHAR VS UNION OF INDIA' (Centre for Law and Policy Research,)
- Sakshi Tomar, 'Case Comment: Navtej Singh Johar & Ors Vs Union of India & Ors'
- Arohi Ambade 'Case Summary: Navtej Singh Johar v Union of India thr Secretary Ministry of Law and Justice' (LawLexorg, 2020)
- Kumari Manisha Gupta, 'Navtej Singh Johar & Ors v Union of India: Interpreting Section 377 of IPC 1860' [2021] 4(3) International Journal of Law Management & Humanities
- Shraddha Chaudhary, 'NAVTEJ JOHAR V UNION OF INDIA: LOVE IN LEGAL REASONING ' [2019] 12(Rev 3-4) NUJS Law Review
- Rachel Treisman, 'Will India legalize same-sex marriage? Its top court hears arguments this week' (NPR org, 2023)
- Samanwaya Rautray, 'Same sex marriages cannot be given legal sanction: Government ' (The Economic Times, 2021)
- Ishank Bangarwa, 'Analysis: Same-Sex Marriage in India' (Legal Services India,)
- Raj Krishna, 'Navtej Singh Johan and others v Union of India: Supreme Court's moment of atonement' (Time of India, 2022)
- Global Freedom of Expression Columbia University
- Kumari Manisha Gupta, 'Navtej Singh Johar & Ors v Union of India: Interpreting Section 377 of IPC 1860' [2021] 4(3) International Journal of Law Management & Humanities
- Shraddha Chaudhary, 'NAVTEJ JOHAR V UNION OF INDIA: LOVE IN LEGAL REASONING ' [2019] 12(Rev 3-4) NUJS Law Review
- WP(C) No.7455/2001
- CIVIL APPEAL NO.10972 OF 2013
- Arohi Ambade , 'Case Summary: Navtej Singh Johar v Union of India thr Secretary Ministry of Law and Justice' (LawLexorg, 2020) accessed 21 April 2023
- Global Freedom of Expression Columbia University
- Sakshi Tomar, 'Case Comment: Navtej Singh Johar & Ors Vs Union of India & Ors' [20195] 5(2581-5504) Http://wwwpenacclaimscom/
- Raj Krishna, 'Navtej Singh Johan and others v Union of India: Supreme Court's moment of atonement' (Time of India, 2022) accessed 21 April 2023
- SUPRA 5
- SUPRA 8
- (2018) 10 SCC 1; Raj Krishna, 'Navtej Singh Johan and others v Union of India: Supreme Court's moment of atonement' (Time of India, 2022) accessed 21 April 2023
- Re: Same Sex Marriage, [2004] 3 S.C.R. 698
- Ishank Bangarwa, 'Analysis: Same-Sex Marriage in India' (Legal Services India,) accessed 21 April 2023
- SUPRA 8
- SUPRA 6
- 'NAVTEJ SINGH JOHAR VS UNION OF INDIA' (Centre for Law and Policy Research,) accessed 21 April 2023
- Rachel Treisman, 'Will India legalize same-sex marriage? Its top court hears arguments this week' (NPR org, 2023) accessed 21 April 2023
- Id 12
- Samanwaya Rautray, 'Same sex marriages cannot be given legal sanction: Government ' (The Economic Times, 2021)
Written By: Niharika Kohli, 3rd Year BBA LL. B (Hons.) (Corporate Law) School of Law
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