This article will help in understanding the concept of Homosexuality or Same Sex Marriage. This article will give a clear understanding of the status of Homosexuality in India, section 377 of IPC and how it violates fundamental rights provided by the constitution of India. This article also provides insight into some landmark judgements relating to Homosexuality in India.
Homosexuality and Same sex marriage are a taboo in Indian Society. People in India refrain from talking about homosexuality, but, in recent years, attitude towards homosexuality has shifted slightly. Several News channels, Actors, Social Media influencers are coming out and speaking about them and their rights, but it is not enough.
Current generations and Indian Government are learning to be tolerant towards LGBTQ community. But even after decriminalizing section 377 of IPC, the plight of Homosexuals is not coming to an end.
In rural areas, being homosexual is considered as a mental illness and homosexuals are subjected to extreme violence. A proper law on Same sex marriage is the need of hours. Homosexuals are being subjected to mentality, emotional, physical and economic violence, harassment, exclusion, mockery, discrimination and stigmatization.
We need to change our mentality and accept them as normal, ordinary citizens. Even after declaring section 377 of IPC, the plight of LGBTQ community is not coming to an end. They are being subjected to mental, physical, emotional, and economic violence.
Same Sex Marriage in India
India does not recognize same sex marriage. Our country does not possess any law governing same sex marriage. India is home to people of diverse faith and has codified laws which govern their marriage but none of these laws incorporates provisions for homosexuals.
Marriage is a union which gives certain rights. Marriage is an ancient institution that has
existed in every society. It solemnizes emotional connection. Our society has still not accepted people who belong to LGBTQ community. They face both social and legal difficulties. They cannot file for divorce, maintenance, allowances, succession, pensions etc. They cannot even get a complaint registered if they are raped or physically abused because there is no proper in India which protects their rights.
Homosexual Couples in India face a lot of trouble when it comes to buying property, health insurance, opening back account, getting passports, getting gratuity funds, pensions and other benefits that covers spouses and partners. Making same sex relationship legal is not enough. There should be proper laws that give legal recognition to their homosexual relationship and protect their rights.
Section 377 of Indian Penal Code,1860
Section 377 of Indian Penal Code which was introduced in India during the British rule, states that “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.“
Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
In other words, section 377 of Indian Penal Code states that any person who indulges in any form of unnatural sexual act/carnal intercourse against the order of nature will be punished for imprisonment for life. Thus, some parts of section 377 have been declared unconstitutional.
However, on September 6, 2018, the Supreme Court of India in a historic judgement of nave Singh Jahar & Or’s v. Union of India, struck down parts of section 377 of IPC,1860 which criminalizes sexual intercourse against the order of nature.
The main reason behind decriminalizing homosexuality was that every citizen should have rights to choose his/her own partner, regardless of sex. This judgment made Homosexuality legal in India.
Naz Foundation v. Govt. of NCT of Delhi 2009
In this case, the Court held that right to life and liberty guaranteed by Article 21 includes right to dignity and privacy and held that criminalization of consensual gay sex violated these rights. The court held that section 377 also violates Article 14 of the Constitution as it creates unreasonable classification and targets homosexuals as a class. Article 15 of the Constitution forbids discrimination based on certain grounds which includes sex. The Court held that the term sex includes not only biological sex but also sexual orientation and, therefore discrimination on the ground of sexual orientation is unconstitutional. Hence, those parts of section 377 which criminalizes homosexual acts were declared unconstitutional and left the amendment part of the Parliament.
Suresh Kumar Kosha v. Naz Foundation ,2013
In this case, the Supreme Court struck down the decision given by the High Court in the Naz Foundation Case stating that judicial intervention was required in this issue. This decision of the Supreme Court recriminalized ‘’sexual intercourse against the order of nature.’’
National Legal Service Authority (NALSA) v. Union of India
In this landmark judgement, Supreme Court legally recognized third gender/transgender persons. The court held that the third gender persons were entitled to fundamental rights guaranteed under Article 14,15,16,19(1)and 21 of the constitution. Further, the SC stated that Article 14 of the Constitution protects rights not only of Men and women but also transgender people. Article 15 forbids discrimination on the grounds of sex. Here, sex does not only refer to biological sex but also sexual orientation. So, discrimination of the ground of sex included discrimination on the basis of gender identity.
Justice K.S. Pettaway v. Union of India 2013
In this case, court held that the right to privacy is protected as an intrinsic part of the Constitution. Court held that sexual orientation is an essential attribute of privacy and this attribute is protected by various rights under Part 3 of the Constitution.
Naveta Singh Jahar v. Union of India
In this case, Supreme Court held that criminalization of consensual sexual sex between adults was unconstitutional as it violated the Right to Equality guaranteed under Article 14 of the Indian Constitution. Further, the court held that the choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not be subjected to discriminatory behavior are intrinsic to the constitutional protection of sexual orientation.
Violation of Fundamental Rights
Right to Equality
Article 14 provides that the State shall not deny to any person equality before the law or equal protection of the laws within the territory of India and It also prohibits equality before law and equal protection law. Article 14 of the Indian Constitution prohibits discrimination on the ground of religion, race, caste, sex, or place of birth. Section
377 of IPC violates article 14 as it unreasonably discriminates homosexuality as a class and criminalizes them.
Right Against Discrimination
Article 15(1) prohibits discrimination on the grounds of religion, race, caste, sex and place of birth. In the case of National Legal Service Authority (NALSA) v. UOI, the Supreme Court held that legal recognition should be given to transgenders as a third gender. So, non-recognition of same sex marriage/homosexual act amounts to discrimination on the ground of sex. Thus, section 377 violates section Article 15(1).
Right to Freedom of Speech And Expression
Article 19 states that all citizens shall have the right to freedom of speech and expression and to form associations or unions. Article 19(1)(a) also includes the right to express one’s sexual identity and orientation. Section 377 violates their ability to express themselves openly. Article 19 protects privacy, gender identity, integrity.
Right to Privacy
Article 21 provides for protection of life and personal liberty. Right to live with dignity includes ‘’right to choose gender identity.’’ Article 21 of the Indian Constitution protects right to marry a person of one’s choice and this right also applies to same sex couples also. Section 377 of IPC denies recognitions of same sex marriage. Hence, it violates Article 21of the Indian Constitution.
Same Sex Marriage Under Various Personal Laws in India
Hindu Personal Law
Hindu Marriage Act was enacted by Parliament in 1955 to amend and to codify marriage law between Hindus. Section 5 of Hindu Marriage Act states that marriage can be solemnized between any two Hindus. But it uses the words like Bride, Bridegroom, Hindu Man, Hindu Women which makes in heteronormative in nature. Hindu Marriage Act does not expressly prohibits Same Sex Marriage and can be easily amended to include the provisions for Same Sex Marriage.
Muslim Personal Law
Homosexual acts are forbidden in traditional Islamic Jurisprudence and are liable to different punishments, including death penalty. As per the traditional Islamic Law, homosexuality is a sin and hence it is banned. The procedure laid down for marriage in the Quran is heteronormative in nature. According to Muslim Personal Law, marriage is a contract and the purpose of marriage is to legalize relationship between a man and woman. The procedure provided for Divorce and Nikah also uses the terms man and women. However, it cannot be said that Homosexuality is expressly banned in Muslim Personal law.
Christian Personal Law
Christian Marriage Act does not expressly prohibit same sex marriage. It does use terms like Christian Woman and Christian Man which makes it heteronormative in nature. Section 60 of the Christian Marriage Act lays down the age of man and women intending to be married. However, it does not expressly prohibit same sex marriage.
Special Marriage Act
Special Marriage Act,1954 lays down procedures for marriage between individuals from different Religions and Castes. There is no provision for same sex marriage in Special Marriage Act. The Special Marriage Act uses terms like Man and Woman, making heteronormative in nature. However, it can be easily amended and modified to include same sex marriage. It has been argued in the Court that Special Marriage Act should be interpreted to also apply to same sex marriages.
Since same sex couple do not have legal recognition, they are being subject of various crime and abuses. Even after decriminalization of Same Sex relationship the plights of homosexuals still continue. Our society has still not accepted it.
Marriage is not just union between two individuals but it brings two families together. The real challenge is to make same sex marriage legal in India. It still feels like a distant dream. Every now and then homosexuals are being victims of violence, abuses, harassment, discrimination and mockery. Legalizing same sex relationship is not enough. There is a need to give legal recognition to same sex relationship so these people can enjoy their legal rights as normal citizens. This is just the first step. There is still a long way to go.
Question 1) Is Same Sex Marriage Legal In India?
Ans: No, same sex marriage is not legal in India. However, Section 377 of Indian Penal Code which provided for punishment if any person indulged in sexual course against the order of nature has been decriminalized, making Homosexual relationship in India legal.
Question 2) How Is Section 377 Violative of Fundamental Rights?
Ans: Section 377 of Indian Penal Code, 1860 violates fundamental rights guaranteed under
Article 14,15,19(1) and 21 of the Indian Constitution.
● Section 377 violates article 14 of the Constitution as it creates unreasonable classification and targets homosexuals as a class.
● Section 377 discriminates homosexuals and criminalizes their consensual sex. Here, sex does not only refer to biological sex but also sexual orientation. So, discrimination on the ground of sex included discrimination based on gender identity.
● Article 19(1) (a) also includes the right to express one’s sexual identity and orientation. Section 377 violates their ability to express themselves openly.
● Article 21 of the Indian Constitution protects right to marry a person of one’s choice and this right also applies to same sex couples also. Section 377 of IPC denies recognitions of same sex marriage. Hence, it violates Article 21 of the Constitution.
Question 3) What Does Section 377 Of IPC Talk About?
Ans: Section 377 of Indian Penal Code, 1860, makes sexual activity against the order of nature illegal and the person who was found to be involved in such activities were imprisoned for life or imprisoned for 10 years. However, in 2018, those parts of section 377 which criminalizes sexual activity against the order of nature were decriminalized, making homosexuality legal in India.
Question 4) Why Is Legal Recognition Of Same Sex Marriage Important?
Ans: Legal recognition of same sex marriage is very important in India. The members of LGTQ community is often subject to violence, abuses, discrimination, exclusion, stigmatization. People take advantage of them as there is no strict law in the country to protect their rights. They often face problems while buying property, health insurance, securing address proof, filing for divorce, adoption, pension and other benefits that cover spouses and partners.