Op EdsOP. ED.

Introduction

Marriage is a legally and socially sanctioned union, usually between a man and a woman, that is regulated bylaws, rules, customs, beliefs, and attitudes that prescribe the rights and duties of the partners.[1]  Concept of marriage which is sought to be between a man and a woman dates back to 2350 BC[2], but it is in the recent times when we have started talking about something which is not normal, for society, that is, same-sex marriages, the practice of marriage between two men or two women. Although same-sex marriages have been in practice for a long time, Indian Law has not succeeded in providing equal rights to homosexual couples as provided to the heterosexual ones.

Until the beginning of the 21st century, no country had laws that recognised the legality of same-sex unions. Over the past two decades, twenty-eight countries have recognised same-sex unions. However, there has been a trend of African nations criminalising homosexuality and enforcing draconian laws with extremely harsh penalties. The global trend has been a slow change in the legal status of same-sex marriages. Most of the western nations have decriminalised[3] homosexuality and are well on the way to recognise same-sex marriage.[4] The areas that have started criminalising homosexual behavior are limited to the Middle-East[5]and Africa, with some notable exceptions.[6] With the judgment of Navtej Singh Johar  v. Union of India,[7] homosexuality was decriminalised in India by the Supreme Court. However, marriage in India is a community matter more than a State matter which gives rise to a battle between public policy, religion, and social norms, such battles arise every time a group of people is included or excluded, from being able to marry.[8] This paper aims to explore the social and legal aspects of same-sex marriage in India. It examines the roots of marriages and marriage-related laws in India to explain why it is important to provide legal sanction to the same-sex union. Other than the legal benefits, studies have shown many benefits of gay marriages, especially psychological benefits, they have found that people in gay marriage enjoy better health.[9] In the end, the paper also suggests some changes that can be brought in the existing personal Hindu Law: the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 to include same-sex couples.

Homophobia: A Western Concept?

To be objective about the importance of the study, it is imperative to start with the origin of homophobia in India. The revolution for gay rights and marriage, at first glance might appear to be related to the push for same-sex marriages in the west, but in reality, it is not. Same-sex desire and sexual activities have been discussed rather in a non-judgmental and even celebratory manner, in both ancient and pre-colonial Indian literature. Homophobia was a concept developed during the colonial period and became a notion in post-colonial time and is continuing even today.[10]

Homosexuality in ancient India

Ruth Vanita, in her article ‘Same-sex weddings: Hindu traditions and modern India’[11] discusses thoroughly the origin of this homophobia and how Indians accepted it as something prohibited in their religion. She considers homophobia as a generalized attack by British missionaries on Indian sexual mores and practices. Colonisation besides other negative impacts has a major part in taking away our true Indian culture. The introduction of the term ‘homosexuality’ and the laws prohibiting ‘unnatural’ sex was done by imperial might. This is evident from various Hindu literature, medieval history, mythology, and depiction of homosexual couples in the temples of Khajuraho and Mughal chronicles.[12]  There was, indeed, disapproval for homosexuality but homosexuals were not ostracised, society was tolerant towards them and they were not hounded for being a homosexual. There were several rulers who, according to historical text, had sexual attractions towards other men. Alauddin Khilji’s[13] son, Mubarak, was known to be in a relationship with one of the noblemen in his court. Babur, who founded the Mughal dynasty, also wrote about his love for men. He has mentioned his love for a boy named Baburi.[14]  Amongst other vast ancient Indian literature, Kamasutra by Vātsyāyana has attained universal recognition. In the context of special or non-normative sexual practices, the text responds, ‘in all things connected with love, individuals may engage in different types of sexual activity, provided everybody should act according to the custom of the country and his inclination’.[15] Classic texts like Kamasutra talk about man-man unions. According to which, if two male friends have complete trust in each other and are  well-wishers of each other, they may mutually unite. These texts not only describe but also prescribe ‘queer’ sexual practices such as ‘auparishtaka’ i.e. mouth congress. The word used in Kamasutra for same-sex unions is parigraha, which has received different interpretations by different scholars. Some scholars translate it as ‘marry’, while others as ‘embrace’.[16]  The word homosexuality came in India with the introduction of the term ‘homophobia’. This word emphasises sex rather than love. Notably, the classic texts head towards love and pleasure rather than procreation. Historians believe that the conservative outlook towards same-sex relations started with the British rule and became even stronger after independence.

Origin of homophobia

It is evident not only in the British anti-sodomy law implemented in the  Penal Code of 1860, but also in the subtle heterosexualisation of all literature: canons and genres (such as the Urdu ghazal or love poem, which historically gendered both lover and admirer as male) undertaken by literary critics, scholars, and authors.[17]  Most Indian nationalists internalised this homophobia and went on to see homosexuality as an untold crime. Homosexuality had never historically been viewed as unspeakable in Indian texts or religions. The Hindu faith is complex due to different religious lifestyles that prevailed in ancient India. One of the earliest treatises on Hindu Law, Manusmriti (Laws of Manu), prohibits men from practicing ‘ayoni’ (non-vaginal) sex.[18] However, no evidence has been found of anyone being punished or prosecuted for same-sex relations in ancient India. The new silence surrounding homosexuality is one reason why modern institutions such as the police force and educational and religious organisations today typically respond with horror and even violence to union of same-sex people.[19]

Section 377 IPC and its decriminalisation

Unnatural offences.– Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.[20]

Analysis of the judgment

Recently, a colonial-era law has been struck-off   by the Supreme Court.[21] The LGBTQ community remained ostracized for long until it ended. However, still there are challenges ahead. Well, the story is not black and white, there is much hiding amongst the grey. The opening statement of the judgment comprises of two great quotes by Johann Wolfgang von Goethe, “I am what I am, so take me as I am” the other by Arthur Schopenhauer, “No one can escape from their individuality” everyone is unique in their way.[22]  The rights mentioned in our Constitution are that of equality and liberty.[23] Our Constitution fosters equal rights to everyone. The court is the final keeper of the constitutional values and must do justice to the minorities and weaker sections of the society. The judgment mentions the interpretation drawn by the Supreme Court of Canada in same-sex marriages, which observed that the laws that deprive someone of basic human rights should be repealed.[24]

It has been observed that the society has transformed since 1860 when Section 377 was enacted. According to Section 377, sexual intercourse against the order of nature is criminal in nature. In other words, all non-penal vaginal sex was criminal in nature.

The Supreme Court in State of Keralav. N.M. Thomas[25] stated that the Constitution has transformed India from a medieval and hierarchical society into a modern and egalitarian society. The constitution aims to take the society towards a resplendent future. This implies that things that are digressive for society should be dealt with in the stipulated time. Therefore the purpose of the Constitution is to make progressive amendments for the society. This objective is covered under the ‘Transformative Constitutionalism’.

The idea of Transformative Constitutionalism is to embrace the basic constitutional values; such as justice, liberty, equality, and fraternity. This idea aims to identify the demands of current day society and to oppose ideas that are stagnant and static. It gives the Indian Constitution the power and ability to transform with transforming times otherwise the society will be unable to comply with the changing times and will ultimately fail to progress. Stagnant society is not a good sign for mankind and humanity.

Constitutional morality

The Navtej Singh Johar Bench also quoted Dr. Ambedkar’s idea of Constitutional Morality which along with other organs of the State is a duty of the judiciary. According to Ambedkar, justice, liberty equality and fraternity cannot be attained without the organs of the State being loyal to Constitutional Morality.[26] When a provision is challenged to be against the fundamentals of the Constitution, be it the case for minority or majority, it has to be dealt with justly and in consonance with the constitutional principles.[27] If LGBTQ is declined their basic rights, the courts that have been the statue of justice for so long will be under a big question mark. If any provision is found to fail the parameters of the Constitution it should be abrogated.

LGBTQ: Equally entitled to human rights and dignity

The perspectives of human dignity were also taken into consideration while deciding this matter. The Right to Dignity is an inseparable aspect of Right to Life and is protected under Article 21 of the Indian Constitution.[28] It has got space under the international domain as well in the Universal Declaration of Human Rights, 1948[29] which talked of all individuals being born free and equal in dignity and rights. These rights of human dignity are for everyone, the prisoners, the murderers, and the criminals. In Maneka Gandhi v. Union of India,[30] Krishna Iyer, J. observed that dignity is a sacrosanct human right and if it is lost, the life loses its substance and meaning.

Liberty of choice and human dignity

The Court relied on a few foreign judgments which talked about individual choices and the freedom of choice being an important aspect of liberty. Liberty and dignity are two sides of a coin and they cannot remain independent of each other. Every human being has a certain sexual orientation, biological characteristic differs naturally. It is only the society that creates discontentment. The American Psychological Association defines sexual orientation as a feeling of romance, sexual attractions towards both sexes, and identification of a person based on these attractions, the stretch of attraction ranging from hetero to homosexual ones. Also, the Association says that homosexuality is neither a mental problem nor  a physical one but the community of LGBTQ is just a minority in our society.[31]

Everyone has the right to equality and non-discrimination, right to recognition, right to privacy, freedom of opinion and expression. These principles read along with Articles 14, 15, 19 and 21 declared the colonial rule unconstitutional and scrapped Section 377 of the  Penal Code. From the last one-and-a-half century about a couple of hundred people were prosecuted under this section.[32] They did not cause any harm to others but were just trying to enjoy their fundamental rights which the law transgresses. The Court found that the State has no reason to not scrap this law, as it is a violator of the fundamental structure of the Constitution.[33]

Deepak Mishra, CJ, thanked all the attorneys involved with Navtej Singh Johar case as their arguments helped in doing justice. The Court observed that a heterosexual boy and a homosexual boy are like right-handed and left-handed people. Few are born left-handed and few grow to become left-handed but under any circumstance, they are both normal.[34]

The British Prime Minister Theresa May in 2018, admitted that although laws criminalising same-sex interactions are legacy of her country, they are discriminatory and violence-inciting, they were wrong then and they are wrong now and such laws should be put to an end.[35]

It was also observed in Navtej Singh Johar case that since the Right to Privacy has become an intrinsic part of the Indian Constitution, and sexuality is an innate part of privacy and it is protected under Articles 14, 15, 19 and 21 of the Constitution, hence this law is ultra vires.[36] The Court hence overruled Suresh Kumar Kaushal’s judgment[37] that criminalised ‘carnal intercourse against the order of nature’ even if performed consensually as defined in Section 377. Furthermore, same-sex relationships cannot be seen as a parallel to the offence of bestiality and sodomy. The colonial era criminalising act of same-sex relation has been found failing to comply with the Articles 14, 15, 19 and 21 of the Constitution. The Bench consensually decided to decriminalise homosexuality.[38]

The mere fact that they are a minuscule fraction of 1.3 billion[39] Indians, it cannot be taken as a ground to deprive them of their basic fundamental and human rights. The Court cited that the founding fathers of our Constitution never wanted the Constitution to be discriminatory on any grounds, it promised everyone to be treated equally. The Constitution grants the change of beliefs and also guarantees the authority to secure the rights of the LGBTQ community. Indu Malhotra, J. said that History owes an apology to the members of the LGBTQ community and their families as they were living a life full of fear of persecution and reprisal.[40] The misapplication of the provision did cost them a lot for a long time.

Importance of marriage

As argued by William Eskridge, “marriage is an institution that is constructed, not discovered by societies”.[41]  The definition of marriage was different for different cultures at different times. Marriage has transformed from being a sacred religious institution to a legal contract, from a patriarchal institution to a more equitable partnership built on freedom and equality. However, in the orthodox understanding, marriage has always been considered central to sexual expression and the procreation of children for the formation of the community, and social and political alliances. It has also been considered significant for the regulation of property. Even though all these functions cannot be denied but the contemporary understanding of the marriage institution argues that marriage in contemporary society should be understood foremost as an institution that provides expression to love.[42]

The very first debate for legal marriage in India dates back to the 1860s, when the colonial State received a petition signed by Keshub Chandra Sen of Brahmo Samaj, to legitimise marriages amongst the members of Brahmo Samaj. The motive was to provide the Samaj the right to freely marry as per their ‘rites of conscience’. The Governor General’s Legislative Council began proposing the introduction of a civil marriage law for all Indians, paying little heed to the particular request and situation of the Keshubite petition. The idea behind the law was that those willing to dissent from the religious traditions of the marriage rites would be able to get State’s approval, even though their families, castes, or ethnic groups disowned them. The debate after the publication of this purpose put ‘native’ communities in a state of turmoil, desperate to represent themselves to be morally and socially better than the degenerate ‘Europeans’ in marriage and kinship relations. This led to the introduction of the first civil marriage law in India, Act II of 1872 which was later replaced by Act III of 1872.[43]

It shall be noted that the major idea behind the introduction of civil law for marriage was to provide a legal sanction to the marriages of people who have been outcast by the traditional societies, similar was the motive behind the introduction of the Special Marriage Act, 1954 by the Indian Parliament. The NALSA judgment has put the Right to Determination of Gender under Article 21 of the Indian Constitution.[44] There is a need for legal acceptance of marriage rights for the LGBTQs. It takes time to get social acceptance but over the years, it can be seen that legal recognition precedes social acceptance. We saw in case of reservation when the V.P. Singh Government showed a green flag to the legislation there was turmoil all over the country, people protested but with the flow of water in the river, they accepted it.[45] Decisions like these take time to make their way through societal dogmas especially in a diverse country like India.

Why the decriminalisation of homosexuality is not enough?

Although governments after governments have introduced various laws for the protection of rights of trans people even in the 21st century, we are yet to provide the community with their right to marry a legal sanction. As discussed above, sometimes law acts as a catalyst to social acceptance. There was a time when love marriages did not exist at all. Marriage was incomplete without the blessings of the parents. With the legalisation and introduction of civil marriage laws, the couples found a way to get social acceptance through legal sanctions. There have been many revolutions for better laws for the trans community but the right to marriage has not so far been a major issue. One argument can be, as India, unlike western democratic nations, though being a secular country, is yet to take full control of marriage. Marriage is considered as a subject under the control of the particular community itself. Indian Law accepts and recognises a marriage performed according to any Hindu community rites and practices as legitimate. Most of the Hindu marriages in India today take place without a marriage licence and are, mostly, never registered with the State. Marriages in India are considered to be a family matter conducted within the community. The approval of elders is considered to be important to approve a marriage. This implies that society plays an important role in deciding what may constitute a marriage.

History of same-sex marriages in India

In 1991, ABVA, in its report “Less Than Gay: A Citizens’ Report on the Status of Homosexuality in India”[46], among other things, demanded the amendment of Marriage Acts to recognise same-sex marriage. The organisation reiterated its demand in 1999 in “For People like Us”.[47]  The later was in response to the suicide by two homosexual women, Monalisa Mohanty and Mamata Rani Mohanty.[48] For apparent reasons, their union was accepted neither by society nor by their families. Courageous enough, the ladies registered their union but, as expected, their action faced criticism, and their family tried to separate them. They saw no other option but to end their lives. Many other homosexual couples have also tried to register their holy union by claiming their rights in the court of law. However, the question here arises, why, even after the acceptance of  homosexual community, the community still needs to claim the very rights given to every individual by the Constitution itself?

The judgment in Arunkumar v. Inspector General of Registration [49] unarguably, led to a great step for the community, both socially and legally. However, the judgment in no way universally legalises same-sex union, which means the LGBTQ community is yet to be accorded a fundamental right to marry under Article 21 of the Constitution of India. Leela Namdeo and Urmila Srivastava’s marriage is a prominent union in the history of  LGBTQ community. In 1988, the two policewomen married following all the rituals of a typical Hindu ceremony.[50]  In response, they were suspended from their jobs but fortunate enough to be supported by their family. Since then, newspapers have been reporting a series of same-sex marriages. Some receiving applaud but most of them criticism.

There have been many instances where parents in spite of knowing about their children’s sexual orientation  got them  married  to the opposite gender. These sorts of things take place in Indian society to avoid public discomfort and to maintain  so-called social dignity. Being different is not a felony that it needs some charge or exculpation. There is a real-life example of how complicit the cases can turn under such circumstances. There have been many instances where a gay man was forcibly married to a girl by his parents and they conceived a child out of the wedlock. After some time the girl found out that her husband was having an extramarital affair with another man. Now the story is as we think it is. The question is how many lives it affected, the two families , the life of their unborn child, friends and acquaintances and all of this just because of homophobia of the  parents.

There are certain other rights “normal couple” do have like the right to inherit other’s property. These people don’t need any special rights but basic human rights that everyone else is entitled to. They should not be discriminated for who they are. Every person is entitled to the same respect, right and dignity. Marriage is an inherent part of personal rights; K.S. Puttaswamy v. Union of India[51]held that “marriage and family are part of an individual’s sphere”.

If we shift our focus to basic democratic rights, the prime right among them all  is the right to cast vote. The All India Hijra Kalyan Sabha struggled for more than a decade to get the right to vote. They were ultimately given the right to vote in 1994 i.e. after 47 years of independence.[52] There have been many struggles and movements since then, as of now much water has flown and the LGBTQs began to get representation in the offices at the helm. Manabi Bandopadhyay, Joyita Mondal, Swati Baruah are few names to take. India is blessed that both the major political parties of i.e.  Bhartiya Janta Party and  Indian National Congress advocate for rights of LGBTQ. Their manifestos included the promise to grant equality and equal protection of laws.

Benefits of a legal sanction to the marriage

Legal benefits

Unlike the United States of America and some other countries, India does not provide significant marriage benefits and privileges. Some of the aims behind introducing the Civil Marriage Act were to provide marriage security, remove gender-based injustice, and curb child marriages. The institution of marriage provides certain rights and privileges to the persons in matrimony in the society and due to the aforesaid exclusion; homosexual couples are denied an opportunity to enjoy similar rights and privileges. Being married carries along with it the right to maintenance, right of inheritance; a right to own joint bank accounts and lockers; nominate each other as a nominee in insurance, pension and gratuity papers, etc. Among other things, in a country where rules are prone to change, registering the wedding also makes things smoother. Further, for a couple to fly abroad on their spouses’ visa and to apply for citizenship in a foreign country, the marriage certificate is mandatory.

Physiological benefits

Other than legal benefits, numerous studies have proved that providing a legal sanction to same-sex couples shows conspicuous improvement in both their physical and mental health. Perhaps, the saying “married people live healthier, happier and longer lives holds true.”[53] Discriminatory environments and public policies create stigma among the public and can give rise to a feeling of rejection, shame, and self-esteem issues. Restricting marriage to heterosexual couples denies access to an important social institution for lesbian, gay, and bisexual adults and, in a significant sense, makes them second-class citizens. Before and after the legalisation of same-sex marriage, a study in Massachusetts tracked a group of gay and bisexual men, and found that these men were less likely to seek mental health or medical treatment visits. Two analyses revealed that lesbian, gay, and bisexual individuals, who married following the judgment legalising same-sex marriage by the Californian Supreme Court, reported less psychological distress and were more likely to receive coverage of the health insurance.[54]

Discrimination at every level

As far as discrimination against the community is concerned it is not only happening at a small level where people are not much literate, but at the international levels too. Runner Santhi Soundarajan won a medal in 2006 Asian Games and later when her identity was revealed, she was ripped off her medal. Ultimately she could not bear the heat and committed suicide.[55] Dutee Chand came out after the judgment, which she said gave her the desired encouragement to announce that she belongs to the LGBTQ community. The repercussions were obvious, she faced being ostracized by her parents and the village. Her parents and closed ones said that she had brought shame and disgrace to the village.[56] The stigma stuck around homophobia should end now. They are like any other normal being. The purpose of quoting the above examples was to prove that homophobia is prevailing at every level of the society in India. Decriminalisation of homosexuality was just an opening of the door to a larger battle of protecting human rights and equality.

Survey to show the awareness regarding the issue

A total of 100 law students were asked to submit responses to a few questions, using Google forms, out of which 6% were homosexual, 6% were bisexual and the rest were heterosexuals. When asked if they had ever heard of homosexuality before the judgment of Navtej Singh Johar v. Union of India,[57] only 73% replied in affirmative. Considering the survey was conducted among the law students the percentage is quite low. The fact that homophobia has led to ignoring the community as a whole is unfortunate. About one-fourth of the respondents responded negatively to the question of a change in perspective towards the homosexual community after the judgment, all those who responded negatively did not necessarily mean that they opposed  it, some used to advocate the rights even before the passing of the judgment. While the others who were influenced by the judgment say that the judgment opened their eyes, one said that it made them realise “how late we are,” few said that “it is a natural thing and they should not be deprived of the rights that others have since birth.”

The next question was regarding the feeling that attraction towards someone of the same gender is a kind of mental/physical illness. 87.7%  responded with a clear no, while 9.2%  were unsure and 3.1%  believed that it is a kind of illness.

Next question was that if homophobia could be observed in the surrounding society. As expected, 80.6%  of the people said yes, it is there, while 18.4%  felt that there was no homophobia around them.

The next question was regarding the statement made by Indu Malhotra, J. that “we owe an apology to the LGBTQ community”,[58] a majority of 84.6%  agreed with her, 7.7% said maybe we do, while the rest 7.7%  responded with a no.

The last question in the series was regarding the legalisation of same-sex marriages in India. 99.9% of the students replied in affirmative but there was one response that said, “No, Indian society is still not ready for this change”. Indian society was not ready to provide women with the right to vote either, but they eventually applauded the decision.

How the current laws can be reformed?

Even though in India, marriage is considered to be a sacrament and weddings have a strong religious and cultural significance as well as social importance, same-sex couples are still struggling for validation and sanction of their union by the Government. In the current context, the best possible way to provide sanction to same-sex unions would be bringing reforms in Indian personal laws. India has different personal laws for almost all religions when it comes to marriages, considering the different rituals. The religious ceremonies are an essential part of the marriage but it is also important to note the point of view of Scottish legal scholar Henry Maine, legal advisor to the Viceroy of India in 1862.[59] Maine came out with the Native Marriage Act that created a non-religious marriage for everyone willing to take that route. His theory after receiving a lot of criticism from traditionalists eventually led to the creation of the Special Marriage Act, 1954.[60]

The Hindu Marriage Act, 1955

Hindu, Sikh, Jain and Buddhist unions come under the purview of the Hindu Marriage Act, 1955[61] which states that a marriage may be solemnised between any two Hindus.  The Act is slightly neutral on gender, as in place of male and female it mentions bride and bridegroom. Hence, it is possible to argue that same-sex couples may use this interpretation of the definitions of bride and bridegroom as gender-neutral. This approach has been tried by lesbian couples, where one partner presented herself as the bride and the other as the bridegroom. However, this approach shall not stand the statutory and common interpretation of these terms. The common and normalised interpretation also promotes gender stereotypes, as it pre-sets the roles in the marriage. Recognition of same-sex marriages under Hindu personal laws can be obtained by various approaches and one of them can be the interpretation of the existing laws to permit gender-neutral definition of these terms. Another approach can be explicitly amending the existing law to include same-sex marriages.

Ruth Vanita also suggests a different approach,[62] where she talks about providing recognition to the LGBT community’s marriages as a community of its own that has its customs and practices. Just like Arya Samaj and anti-Brahmin, whose Self-Respect Movement in Tamil Nadu led to the formulation of their own marriage rituals and practices by amending Section7 of the Special Marriage Act.[63]  The LGBT community could agree on a common marriage practice and seek recognition under the Act but the difficulty is that members of the LGBT community are governed by different personal laws and follow different customs and practices. Unlike Arya Samaj or the followers of the anti-Brahmin movement, they are not united by a desire to bring about specific reforms in Hindu marriage ceremonies.[64]  The only feasible approach among the above mentioned three approaches is perhaps, amending personal laws to include same-sex marriages. Not only in the Hindu personal laws, but the recognition of same-sex marriages is also necessary in the Special Marriage Act, to avoid the religious barrier.

The Special Marriage Act, 1954

The SMA, 1954, is a secular legislation which facilitates marriages between male (at least 21 years old) and female (at least 18 years old) irrespective of their religion. The Act aims to provide sanction to marriages of the people belonging to different religions or the people who do not wish to  remain bound to their particular laws. Under this law, instead of a religious ceremony, a Marriage Officer registers the union.[65]   To include homosexual couples in this Act would only require amending Section 4(c) of the Act.[66] In any case, even if personal laws are amended to recognise same-sex marriages, the SMA would have to be amended to accord the same recognition to relationships between persons belonging to different religions.

While the change in question is easy to draft and cannot be said to interfere with religious freedoms, it is bound to generate vocal opposition. The amendment to the SMA would be similar to the laws permitting same-sex marriages enacted in other countries. Today, twenty-eight countries have enacted such laws starting from the Denmark in 1989[67] to Costa Rica in 2020.[68]  Similarly, fifteen States in the USA have passed laws permitting same-sex marriages. However, there are various anti same-sex enactments as well. The US Congress enacted the Defense of Marriage Act, 1996 (‘DOMA’) to deny federal benefits to same-sex couples married under State laws. While DOMA was struck down by the US Supreme Court[69] and the Obama Administration also did not support the Act, the challenge to DOMA in the Supreme Court was vigorously defended by Republican groups. Such actions produce a political backlash, varying across areas.[70] Legalising gay marriage in States like Massachusetts generated little political opposition since the majority of residents were in support of it.[71] However, the backlash in Ohio relating to a judgment in favour of gay marriage was extremely strong. George Bush, the Republican candidate, enjoyed a double-digit increase in the percentage of votes by the religious, the elderly, working class, and African Americans groups that disproportionately opposed gay marriage.[72] Even in a country where the battle for LGBT rights has been fought tenaciously over several decades, the strong opposition to recognise same-sex unions still exists. An even greater backlash is highly probable in India, especially considering that it is a country that has taken 70 years after independence to even decriminalise homosexual acts.

Conclusion

A government may define marriage but it cannot tell people whom to love, neither can it exert exclusive control over marriage nor people’s understanding of marriage.[73]

Sexuality is but one of the many areas where religious and civic authority interact, and definitions of the purpose of marriage is another.[74]  Societies have resolved the intertwined issues of sexuality, reproduction, and marriage in myriad ways. Their responses regarding the morality, desirability, and administrative perquisites of same-sex partnerships have been equally diverse. Notably, however, by the beginning of the 21st century, most countries opted for one of only four legal resolutions to these intersecting problems: to ignore same-sex partnerships, to criminalise them, or decriminalise them, or to grant them a status similar or equal to that of heterosexual marriage. Most of the countries either choose to ignore them by describing homosexuality as a mental disorder or decriminalise their existence as India did.

After the judgment that struck down Section 377[75], Guruswamy and Katju met few parents having homosexual children to know the status quo[76]. Most of the parents were, indeed, grateful for the Supreme Court’s verdict.[77]  Indeed, the journey ahead is long and arduous, but young people in India are ambitious and have their entire lives ahead of them. During Section 377 hearings, many of the petitioners emphasised how this country, India, was as much theirs as anyone else’s. They wanted the Constitution to reflect their needs and rights in light of the changing times and that is exactly what happened.

It is shameful that most of the people are not even aware of the third community and their rights. It was shocking when famous actor Ayushmann Khurrana, who released a  movie “Shubh Mangal Zyada Savdhan” on a misconception that same-sex marriages are legal in India. To which he did apologize later but this shows the lack of awareness among people towards this issue. It may seem a less important issue, relatively, but in a country of almost 1.3 billion people, of which the LGBTQ+ community comprises 7-8%[78] (no wonder many more who are still scared to come out) of the population, why should the community be denied  any rights that every fellow human being gets?

The law was changed not the society. The striking of Section 377 only managed to recognise LGBTQ as a community. It did not consider their right to marry. Non-recognition of their marriages not only promotes the stigma attached but also deprives them of the rights that heterosexual couples get such as the right to adoption, maintenance after divorce and compensation in case of death of the partner at work, etc.

The right to adoption is governed by the Hindu Adoption and Maintenance Act, 1956,[79] and Central Adoptive Response Authority. Under the Act, same-sex couples cannot adopt a child unless one of the partners adopts the child as a single parent.[80] However, this would mean that the other parent does not have any legal rights on the child. Also, a single male cannot adopt a girl child which restricts the scope for male homosexual couples.

Maintenance is covered under the Protection of Women from Domestic Violence Act, 2005[81]  and Section 125 of the Criminal Procedure Code of India,[82] both of these Acts as also pointed out by the Supreme Court in Indra Sarma v. V.K.V. Sarma,[83] are gender-specific and do not cover homosexual partnerships. Similar is the case with the Workmen’s Compensation Act, 1923[84] , and other Acts involving the benefits of marriages.

With Denmark being the first country to recognise same-sex partnership as a civil union and Netherland being the first country to officially legalise the union, most parts of  Europe have successfully provided recognition to same-sex partnership in some or the other way.[85] Every person is entitled to the same respect, rights, and dignity. Marriage is an inherent part of personal rights; Justice K.S. Puttaswamy v. Union of India held that “marriage and family are part of the individual’s sphere”.[86] It is high time that India gives the community what they deserve and as  Indu Malhotra, J. rightly said, “We owe an apology to the community”;[87] the apology would only be counted by considering them as a part of the society and not someone outcast by the society. In a secular country like India recognitions like civil union, civil partnership or registered partnership will only create chaos which is why the only feasible way is to amend the existing personal marriage laws.

Current scenario

In a recent PIL[88] filed by Abhijit Iyer Mitra, Gopi Shankar, Gita Thadani and G. Oorvasi; it is contended that there is no distinction between heterosexual and homosexual marriage pertaining to the Hindu Marriage Act, 1955.[89] In response to which Solicitor General of India, Tushar Mehra  said that homosexual marriages were never promoted by  Hindu culture. Mr Mehta in his arguments used the words “husband” and “wife” many times. He argued that all the laws related to marriage and related rights mostly use the terms “husband” and “wife” for instance domestic violence laws use the term ‘husband and his relatives.’ He further submitted that our legal system, society, and values do not recognise homosexual marriage. He argued that the laws made deal with husband and wife, in case of gay marriage, who will be called the wife?

It is very shocking that after two years of the landmark judgment in Navtej Singh Johar case, issues like these remain. The  Bench that struck off Section 377 quoted Goethe, “I am what I am so accepting me as I am” but it seems that the battle is going to harder and longer than expected.

As far as the mention of husband’s and wife’s in-laws are concerned, they could be replaced by the word “spouse” to avoid the discrepancies that may arise. This will not only include homosexuals in the laws related to marriage but also make these laws gender-neutral. For instance, domestic violence laws need to be gender-neutral to protect males as well. The article provides all the ways in which the current legal system can change to accommodate the LGBTQ+ community, and also argues that homosexuality has been part of Indian society for a long time and it was only during the colonial era that it was decriminalised.


*Rajiv Gandhi National University of Law, Patiala

[1] https://www.britannica.com/topic/marriage

[2] The origins of marriage, The Week, Jan 17, 2007.

[3]Toonen v. Australia, (1994) Priv Law P RPR 33, (Austl.); Lawrence v. Texas, 539 US 558,123 (S Ct. 2003).

[4] Obergefell v. Hodges, 576 US 644, (S Ct2015).

[5] Frank Bruni, Gay and Marked for Death, NY Times, Aug. 21, 2015.  https://www.nytimes.com/2015/08/23/opinion/sunday/frank-bruni-gay-and-marked-for-death.html; Robert Mackey, “Attack on Gay Pride Parade Shakes Israel’s Self-Image as Bastion of Tolerance”, NYTimes, July 30, 2015. https://www.nytimes.com/2015/07/31/world/middleeast/attack-on-gay-pride-parade-shakes-israels-self-image-as-bastion-of-tolerance.html

[6] David Masci; Elizabeth Sciupac; Michael Lipka, “Same-Sex Marriage Around the World”, Pew Research Centre, Oct. 28, 2019. https://www.pewforum.org/fact-sheet/gay-marriage-around-the-world/

[7] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[8] Nancy D. Polikoff, “We Will Get What We Ask for: Why Legalizing Gay and Lesbian Marriage Will Not “Dismantle the Legal Structure of Gender in Every Marriage,” 79 VA Law Rev. 1535–1550 (1993).

[9]Kamerow, Douglas, “YANKEE DOODLING: Does Gay Marriage Improve Health?” 346 BMJ, at 23 (2013). JSTOR, www.jstor.org/stable/23493476. Accessed 21 March. 2020.

[10]Vanita, Ruth, “Same-Sex Weddings, Hindu Traditions and Modern India”, 91 Feminist Review 47, 47–60 (2009). JSTOR, www.jstor.org/stable/40663979. Accessed 21 March. 2020.

[11]Id.

[12]Sanjana Ray, “Indian Culture Does Recognise Homosexuality Let Us Count the Ways”, The Quint, Sept. 11, 2018. https://www.thequint.com/voices/opinion/homosexuality-rss-ancient-indian-culture-section-377

[13] Khilji ruled Delhi Sultanate between 1296 and 1316.

[14] Ray, supra Note 10, at 3.

[15] Vātsyāyana, The Kamasutra, Benares :Jai Krishna-das-Haridas Gupta, 1929.

[16]Id.

[17]Transgressive territories: Queer space in Indian fiction and film, PhD (Doctor of Philosophy) thesis, University of Iowa, 2009.

[18]Manusmriti translated by Sir William Jones in 1794.

[19]  Ruth, supra Note 10, at 3.

[20] Penal Code, 1860, Section 377.

[21] Navtej Singh Johar  v. Union of India, (2018) 10 SCC 1.

[22]Id, para 2

[23] Articles 14, 15, 16, 21 of the Indian Constitution.

[24]Navtej Singh Johar v. Union of India, (2018) 10 SCC 1  

[25] State of Kerala v. N.M. Thomas, (1976) 2 SCC 310.

[26]Béteille, Andre, “Constitutional Morality”, 43 Economic and Political Weekly 35, 35–42, (2008).

JSTOR, www.jstor.org/stable/40278025. Accessed 29 May 2020.

[27]  C. Golaknath  v. State Of Punjab, AIR 1967 SC 1643.

[28] K.S. Puttaswamy  v. Union of India, (2017) 10 SCC  1.

[29]Universal Declaration of Human Rights, 1948, Art. 1.

[30] Maneka Gandhi v. Union of India, (1978) 1 SCC 248 .

[31]https://www.apa.org/topics/lgbt/orientation

[32] Swati Sharma, “Societal Attitude Towards Homosexuality”, SSRN (2012).

[33]Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[34]Id.

[35] Pippa Crerar, “Theresa May says she deeply regrets Britain’s legacy of anti-gay laws”, The Guardian, April 17, 2018. https://www.theguardian.com/world/2018/apr/17/theresa-may-deeply-regrets-britain-legacy-anti-gay-laws-commonwealth-nations-urged-overhaul-legislation

[36] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[37] Suresh Kumar Kaushal v. Naz Foundation, (2014) 1 SCC 1.

[38] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[39] Worldometer, Population. https://www.worldometers.info/world-population/india-population/

[40] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[41] W. N. Eskridge Jnr, “A History of Same-Sex Marriage”, 79 Va L Rev 1419, at 1485, (1993). https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=2503&context=fss_papers

[42] Eleanor Curran, Hobbes Comes out for Equal Marriage, KAR, 161-178, at 162, (2017).

https://kar.kent.ac.uk/62317/1/15032-0509-PIII-009.pdf

[43]Chatterjee Nandini, “English Law, Brahmo Marriage, and the Problem of Religious Difference: Civil Marriage Laws in Britain and India”, 52 Comparative Studies in Society and History, Vol. 52, No. 3, 524, 524–552, (July 2010).  JSTOR, www.jstor.org/stable/40864788.  Accessed 29 May 2020.

[44]National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

[45]Divyani Rattanpal, “How VP Singh Stirred a Hornet’s Nest With the Mandal Commission”, The Quint, 07 Aug, 2017. https://www.thequint.com/news/politics/how-vp-singh-stirred-a-hornets-nest-with-the-mandal-commission

[46] ABVA, Less Than Gay, at 3 (1991).

[47]Vanita, Ruth, “Wedding of Two Souls: Same-Sex Marriage and Hindu Traditions”, 20 Journal of Feminist Studies in Religion 119, 119–135, (2004). JSTOR, www.jstor.org/stable/25002506. Accessed 27 May 2020.

[48]Id.

[49] Arunkumar  v. Inspector General of Registration, 2019 SCC OnLine Mad 8779

[50] Eskridge, supra Note 41 , at 8.

[51] K.S. Puttaswamy v. Union of India, (2015) 10 SCC 92.

[52]“Eunuchs get voting rights in India”, UPI Archives, Nov. 7, 1994.https://www.upi.com/Archives/1994/11/07/Eunuchs-get-voting-rights-in-India/1844784184400/

[53]https://www.health.harvard.edu/mens-health/marriage-and-mens-health

[54] Mary Ann Lamanna; Agnes Riedmann; Susan D Stewart; Marriages, Families and Relationships: Making Choices in a Diverse Society 166.

[55]“Athlete Santhi Soundarajan attempts suicide”, Sep. 5, 2007.

https://www.hindustantimes.com/india/athlete-santhi-soundarajan-attempts-suicide/story-QzxxUV7se3nK1p60zXSsmL.html

[56]“Dutee Chand Comes Out of the Closet, Defends her Same-Sex Relationship”, May 2019.

https://www.outlookindia.com/website/story/sports-news-supreme-court-ruling-gave-me-belief-that-same-sex-relation-isnt-wrong-dutee-chand/330577

[57]  (2018) 10 SCC 1

[58]Id.

[59]Nandini, supra Note 43 , at 9.

[60]Starr, June, and Jane F. Collier, eds. History and Power in the Study of Law: New Directions in Legal Anthropology. Ithaca; London: Cornell University Press, 1989. Accessed June 5, 2020.

[61] The Hindu Marriage Act, 1955.

[62] Ruth Vanita, Democratising Marriage: Consent, Custom and the Law, in Law like Love, 351, (Arvind Narrain & Alok Gupta eds., 2011).

[63] Section 7, Special Marriage Act, 1954.

[64]Nayantara Ravichandran,“Legal Recognition of same-sex relationships in India”, Manupatra, 95-105.

[65] Special Marriage Act, 1954.

[66] Section 4(c), Special Marriage Act, 1954.

[67]Denmark was the first country to recognise same-sex unions as civil unions providing them certain rights and recognitions but the country officially legalised same-sex marriage in 2012, providing homosexual couples equal rights as heterosexual couples.

[68]https://en.wikipedia.org/wiki/Legal_status_of_same-sex_marriage

[69] United States v. Windsor, 2013 SCC OnLine US SC 86: 570 US (2013).

http://www.scconline.com/DocumentLink/Wepg2FPs

[70]“Home Share Economic Policy the Supreme Court struck down part of DOMA. Here’s what you need to know”https://www.washingtonpost.com/news/wonk/wp/2013/06/26/the-supreme-court-struck-down-doma-heres-what-you-need-to-know/

[71]Flores, Andrew R., and Scott Barclay,“Backlash, Consensus, Legitimacy, or Polarization: The Effect of Same-Sex Marriage Policy on Mass Attitudes”, 69(1) Political Research Quarterly, 43-56 (2016). Accessed June 3, 2020. www.jstor.org/stable/44018528.

[72] Michael J. Klarman, “From the Closet to the Altar: Courts, Backlash and the Struggle for Same-Sex Marriage”, Oxford University Press, Sep 7, 2012.

[73]Vanita Ruth, “Wedding of Two Souls’: Same-Sex Marriage and Hindu Traditions”, 20(2) JFSR, 119–135 (2004). JSTOR, www.jstor.org/stable/25002506. Accessed 26 May 2020.

[74]The Editors of Encyclopaedia Britannica, “Same-sex marriage”, Encyclopædia Britannica, Sept. 27, 2018. https://www.britannica.com/topic/same-sex-marriage (Access Date: May 26, 2020)

[75] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[76] Kanav Narayan Sahgal, “Same-Sex Marriage In India: Unveiling The Marriage Project”, May 19, 2020,

[77]“Lawyers Menaka Guruswamy & Arundhati Katju, the face of historic Section 377 verdict, reveal they’re a couple”, July 20, 2019.

https://economictimes.indiatimes.com/magazines/panache/lawyers-menaka-guruswamy-arundhati-katju-the-face-of-historic-section-377-verdict-reveal-theyre-a-couple/articleshow/70304218.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

[78]Supra Note 39, at 8.

[79] The Hindu Adoption and Maintenance Act, 1956.

[80]“India’s Adoption Policy Discriminative Against LQBTQIA+, 20 Million Kids Remain Without Family”, Nov. 10, 2019. https://thelogicalindian.com/exclusive/adoption-policy-discriminative-against-lqbtqia/

[81] Section 20, The Protection of Women from Domestic Violence Act, 2005.

[82] Section 125, Criminal Procedure Code, 1973.

[83] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755 .

[84] Workmen’s Compensation Act, 1923.

[85] Same-Sex Marriage Around the World, supra Note  6, at 2.

[86] K.S. Puttaswamy, supra Note  51, at 12.

[87] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.

[88]Abhijeet Iyer Mitra v. Union of India, WP (C) No. 6371/2020 & CM Appl. No. 22554/2020

[89] Nilashish Chaudhary, Not Allowing Homosexual Marriage a Violation of Right to Life: PIL in Delhi HC Seeks Recognition Of Same-Sex Marriage, (13-9-2020)

https://www.livelaw.in/top-stories/not-allowing-homosexual-marriage-a-violation-of-right-to-life-pil-in-delhi-hc-seeks-recognition-of-same-sex-marriage-162869https://www.livelaw.in/top-stories/not-allowing-homosexual-marriage-a-violation-of-right-to-life-pil-in-delhi-hc-seeks-recognition-of-same-sexmarriage-162869

Case BriefsForeign Courts

Kenya of High Court, Nairobi: A Full Bench of Roselyne Aburili, E.C. Mwita and John M. Mativo, JJ. dismissed a petition regarding the removal of the ban on same-sex relations.

The petitioner had challenged the constitutionality of Sections 162 and 165 of the Penal Code, 1930 which prohibited unnatural offences in the form of carnal intercourse against the order of nature and indecent practices between males, whether in public or in private. The petitioners contended that the two provisions violated the right to privacy and dignity of the Kenyans guaranteed under the Constitution of Kenya as it made the Lesbians, Gay, Bisexuals, Transgender, Intersex and Queer (LGBTIQ) community in Kenya perpetually exposed to risk of arrest, prosecution, denial of liberty, intimidation and mistreatment. The impugned penal provisions were stated to be violative of Article 27 (equality and freedom from discrimination), Article 28 (human dignity), Article 29 (freedom and security of the person), Article 31 (privacy), Article 32 (freedom of conscience, religion, belief and opinion), Article 43 (highest standard of health) and Article 50 (the right to fair hearing).

The petitioner also argued that the petition neither concerns same-sex marriage, nor does it seek to legalize same-sex marriage; and, if successful, it will not have the effect of mandating or requiring Kenya to recognize same-sex marriage. He maintained that the petition only challenged the criminalization and severe punishment provided under the criminal law for the fundamental and inborn characterization of their sexual orientation.

The counsel for the petitioners argued that Section 162 of the Penal Code did not define the phrases ‘unnatural offences’, ‘against the order of nature’; and it was unclear whether the phrases meant sexual intercourse or include oral, anal, vaginal sex, or whether they include any other contact with the genital organ of another person. Regarding Section 165 of the Code, it was submitted that the phrases ‘indecency with another male person’ and ‘any act of gross indecency with another male person’ were unclear. The counsels placed relied on the cases of US, UK, Ireland, South Africa, and also on Indian cases Naz Foundation v. Govt. (NCT of Delhi), (2016) 15 SCC 619, decided by the Delhi High Court and Navtej Singh Johar v. Union of India, (2018) 1 SCC 791 decided by the Supreme Court of India, where the constitutionality of Section 377 of the Indian Penal Code, 1860 was under challenge. The said Section 377  was similar to the disputed Sections herein and was also a colonial-era law that criminalized homosexual acts as an unnatural offence. The counsel also stated that many other countries around the world had decriminalized homosexuality.

The Court opined that the phrase ‘carnal knowledge’ had been judicially defined in Gaolete v. State to mean “penetration through the anus that makes the intercourse ‘against the order of nature’ and therefore provides the other element of the offence.” It was further observed that ‘unnatural offence’ was defined in Law Dictionary; and ‘indecent act’ was defined under Section 2 of the Sexual Offences Act, 2006. Thus, the Court refused to strike down the impugned provisions as unconstitutional on the basis of ambiguity and vagueness, opining that the impugned phrases had been clearly defined in law dictionaries and in a catena of judicial pronouncements.

While dealing with impugned provisions’ consonance with Constitution, it was opined where there is a legitimate reason, then, the conduct or the law complained of cannot amount to discrimination. It was held that the impugned provisions apply equally to heterosexuals and was not targeted at a particular community (LGBTIQ herein).

The Court further held that petitioners had not produced any tangible evidence to support the alleged violation of the Constitution. It was opined that he who makes an allegation, has the onus to prove every element constituting his or her cause of action, and this includes sufficient facts to justify a finding that his rights have been violated.

The Court opined that the foreign judgments relied on in support of their case by the petitioners, were only of persuasive value and caution must be exercised while placing reliance on foreign jurisprudence in cases alleging infraction of Constitutional rights. The Court observed that decriminalizing homosexuality would pose a threat to the institution of marriage protected under Article 45 of the Constitution of Kenya, which provided that family was a natural and fundamental unit of society and a necessary basis for social order, and shall enjoy the recognition and protection of the State; and, that, “every adult had a right to marry a person of the opposite sex, based on the free consent of the parties.”  Hence, the contention that the petitioners do not seek recognition of same-sex marriages, did not guarantee the authenticity of the institution of marriage as adopted by the Kenyan society.

In view of the above, the Court upheld the constitutionality of the impugned penal provisions.[EG v. Attorney General, Petition No. 150 of 2016, decided on 24-05-2019]

Hot Off The PressNews

In the southeast Asian nation of Brunei a new law proposed Homosexuality and Adultery to be punishable by death.

As per the new law, anyone found to be guilty of the offenses will be stoned to death. The capital punishments are to be “witnessed by a group of Muslims.”

Beginning on April 3, any individuals found guilty of the offenses will be stoned to death, according to a new penal code.

The new penal code was announced in May 2014, by the Sultan of Brunei, Hassanal Bolkiah, who also acts as the country’s prime minister. In announcing the change, government’s website quoted the Sultan saying that his government “does not expect other people to accept and agree with it, but that it would suffice if they just respect the nation in the same way that it also respects them.”

[Source: CNN]

Image Credits: CNN

Case BriefsSupreme Court

  What nature gives is natural. That is called the nature within.

                                                                       C.J. Dipak Misra and A.M. Khanwilkar, J.

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. in their landmark judgment held Section 377 IPC unconstitutional insofar it criminalised gay sex between consenting adults. The Bench which delivered three opinions along with the leading judgment, reversed the 2-Judge Bench decision in Suresh Kumar Koushal v. Naz Foundation,(2014) 1 SCC 1  which in turn had reversed the judgment of a Division Bench of Delhi High Court in Naz Foundation v. State (NCT of Delhi), 2009 SCC OnLine Del 1762. The Delhi High Court in Naz Foundation had declared Section 377 violative of Articles 14, 15 and 21 of the Constitution insofar as it criminalised consensual sexual acts of adults in private.

 I am what I am, so take me as I am.

                                                          –Johann Wolfgang von Goethe

The present judgment can be said to be a watershed moment in India’s journey to gender equality and social justice. The judgment not only emancipates the LGBTQ community from the shackles of gender inequality; it not only gives them the freedom of individuality, Right to privacy, life and liberty, freedom of choice; but also the Right to freedom of self-expression. The decision can fairly be looked upon as a classic example of how the Indian Judiciary time and again rises to the injustice suffered by the discriminated strata of the society. The judgment more than anything gives identity.

The Court considered the validity of the section by analysing it in juxtaposition to Section 375 which defines rape. Drawing an analogy, the Court held that if consensual carnal intercourse between a heterosexual couple does not amount to rape, it definitely should not be designated as an unnatural offence under Section 377 IPC. The expression against the order of nature has nowhere been defined. The non-consensual acts which have been criminalised by the section, have already been designated as penal offences under Section 375 and POCSO Act. If the section remains on the statute book in its present form, it will allow harassment and exploitation of LGBT community to prevail. It abridges both human dignity and fundamental right of privacy and choice of the citizenry, however small. Right to privacy takes within its sweep the right to every individual including that of the LGBT to express their choices in terms of sexual inclination. The section does not survive the trinity test of Articles 14, 19 and 21. Freedom of choice cannot be scuttled or abridged on the threat of criminal prosecution and made paraplegic on mercurial stance of majoritarian perception. To understand the scope of the judicial pronouncement by the sentinel of the qui vive – as our Judiciary has stood always — it is pertinent to delineate the observations made by the Hon’ble Judges in their opinions.

CJ Dipak Misra (for himself and A.M. Khanwilkar, JJ.)

                                                   One defines oneself. That is the glorious form of individuality

  •  It is only where each individual is liberated from the shackles of bondage of social exclusion, identity, seclusion and isolation from the mainstream, that we can call ourselves a truly free society.
  • Through its dynamic purposive interpretive approach, the judiciary must strive to breathe life into the Constitution and not render the document of collection of mere dead letters.
  • Ours is a transformative Constitution. It will become a dead testament without dynamic; vibrant and pragmatic interpretation.
  • Constitutional morality embraces within itself virtues of ushering a pluralistic and inclusive society.
  • Expression of choice is a facet of human dignity and is essential component of liberty.
  • To compel a person having a certain sexual expression to proselytize to another is like asking a body part to perform a function it was never meant to perform.

R.F. Nariman, J.

  • The present definition of mental illness in Mental Healthcare Act, 2017 makes it clear that homosexuality is not considered a mental illness.
  • Viewed in light of the principles contained in Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender of Identity, Section 377 will have to be declared unconstitutional.
  • When it is found that privacy interests came in and the State has no compelling reason to continue an existing law which penalises same-sex couples who cause no harm to others, it is transgression of Articles 14, 15, 19 and 21.
  • LGBTQ are entitled to protection of equal laws and we are entitled to be treated in the society as human beings.

Dr D.Y. Chandrachud, J.

It is difficult to right the wrongs of history. But we can certainly set the course for the Future.

  • The case involves much more than mere decriminalising certain conduct. The case is about aspiration to realise constitutional rights.
  • Section 377 is unconstitutional in so far as it penalises a consensual relationship between adults of the same gender. Constitutional values of dignity and liberty can accept nothing less.
  • LGBT have a constitutional right to citizenship in all its manifestations.
  • It is difficult to locate any intelligible differentia between indeterminate terms such as natural and unnatural. It is even more problematic to say that the classification between individuals who engage in natural intercourse and those engaging in carnal intercourse against the order of nature can be legally valid.
  • Constitution protects fluidities of sexual experience and leaves it to the consenting adults to find fulfilment in their relationships, in a diversity of cultures, among plural ways of life and infinite ways of love and longing.
  • By application of Section 377, MSM and transgender persons are excluded from access to health care due to social stigma attached to their sexual identity. Being particularly vulnerable to contraction of HIV, this deprivation can only be described as cruel and debilitating. The indignity suffered by sexual minority cannot stand the test of constitutional validity.

Indu Malhotra, J.

  • Homosexuality is not an aberration but a variation of sexuality.
  • Sexual orientation is not a choice. It manifests in early adolescence.
  • Sexual expression and intimacy of consensual nature, between adults in private, cannot be treated as carnal intercourse against the order of nature.
  • LGBT is a sexual minority and is equally entitled to protection afforded by Article 15.
  • LGBT are entitled to complete autonomy over the most intimate decisions relating to their personal life, including the choice of their partners. Such choices must be protected under Article 21.
  • Section 377 compels LGBT persons to live in a closet. They are seriously disadvantaged and prejudiced when it comes to access to healthcare facilities.
  • The Section cannot be justified as reasonable restriction under Article 19(2) on basis of public or societal morality as it is inherently subjective.

The Judgment that was delivered, joins the plethora of authorities – including, inter alia, National Legal Services Authority v. Union of India, (2014) 5 SCC 438; K.S Puttaswamy v. Union of India, (2017) 10 SCC 1; Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755; etc.- that were referred to be the Bench in the case herein. The petitions were disposed of observing and holding all that is mentioned hereinabove. [Navtej Singh Johar v. Union of India, 2018 10 SCC 1, decided on 06-09-2018]    

Case BriefsSupreme Court

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M Khanwillkar, DY Chandrachud and Indu Malhotra, JJ. addressed the petitions challenging Section 377 of IPC, 1860, which criminalises unnatural sex between two consenting adults while revisiting its December 2013 verdict in Suresh Kumar Koushal v. Naz Foundation, (2014) 1 SCC 1 which upheld the criminalisation of gay sex.

“As the protector of fundamental rights, the Supreme Court has the duty to protect the LGBTQ community.”

Supreme Court began the hearing with two issues open which were: Sex against the order of nature whether retrograde and can sexual rights to persons be denied just because they are the minuscule minority?

Appearing for one of the petitioners, Mukul Rohatgi contended that the rights of the gay community are protected under Article 21 and “Being gay or lesbian is not a matter of choiceIt is innate, inborn and actually has to do something with the genes.” He stated that a gay man or gay woman shouldn’t be identified as something else.
As stated by learned advocate Mukul Rohatgi on stressing the criminalisation of Section 377 IPC, he quotes that “This is a case of Constitutional morality v. Others” also Section 377 is based on Victorian morality.”Ancient India was different.”

He referred to the following cases in support of his contentions which were:

Senior Advocate Datar began with his arguments by stating that Section 377 IPC is pre-constitutional, not in conformity with the Constitution. Further argued, that one of the Law Commission Reports had also recommended repealing the said section. He also stated that if a person has a different type of sexual orientation to which he has expressed, then it can’t be treated as a crime, to which he also stated that Article 21 of the Constitution includes my choice of sexual orientation and DY Chandrachud, J. accepted the said proposition.

Datar contended that there is no such thing as “Order of nature” and concluded his arguments by seeking a declaration to protect the rights of LGBT community through striking down Section 377 IPC.

The proceedings concluded for the day, Constitution Bench to resume the hearing from tomorrow i.e. July 11, 2018, in Navtej Singh Johar v. Union of India, WP(Crl.) No. 76 of 2016, order dated 10-07-2018.

[Source: The Hindu]