‘’No one can escape from individualism. society is now better for individualism…”
-Justice Deepak Misra (former Chief Justice of India)
Human sexuality in common parlance is a very complex phenomenon and cannot possibly be altered or changed by any external forces. As per an American commentary work of 2016 titled, “sexual orientation: categories or Continuum”, commentary on Bailey et.el, research spanning over several decades has indicated that sexual orientation spans along a continuum from an absolute attraction to the opposite sex to an absolute attraction to the same sex. As per the LGBT+ Pride 2021 Global survey, on average, globally 3% of people identify as “Homosexuals”. With respect to the Legal status on the international level, Article 16 of the Universal Declaration of Human Rights [1]states “Men and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” Since the language of the article nowhere mentions specifically “Heterosexual marriages” and takes a neutral stance, therefore it would be safe to assume that the article covers ambit the Homosexual marriages too within its ambit. India too is a signatory to the declaration and many of the Constitutional provisions are in consonance with those of the declaration.
The notion of Homosexuality in India is not something new and has had a deep and pervasive history of its prevalence in the country. Many religious texts of Ancient India contained homosexual characters and were based on the notion that they were neutral to the idea of Homosexuality. In ancient India, many Hindu Temples showcased same-sex people embracing each other. Religious texts like Rigveda contained phrases like “Vikriti evam prakriti” which means that “what seems unnatural is natural,” thereby giving implied recognition and further some sort of acceptance to the notion of homosexuality. Also, there exist graphic evidences of homosexuality, which are visible across India’s monuments and scriptures.
Further in the Indian “Legal context”, the aspect of Homosexuality has been one which has been ever-evolving till the present date. In the pre-independence era, Section 377 of the Indian penal code, 1860 [2](hereinafter referred to as the IPC) that dealtwith Unnatural offencesstipulated the punishment for people who indulged in carnal intercourse against the order of nature and enshrined a punishment of imprisonment which may extend to 10 years and the offender would also be liable to fine. The very first judgement that dealt with the issue of recognition of homosexuality in India was the 2009 case titled “Naz Foundation Govt vs NCT of Delhi, [3] in which the Delhi High court held that section 377 of IPC imposed an unreasonable restriction on two adults engaging in consensual intercourse in private, thereby infringing articles 14, 15, 19 and 21 of the constitution. This judgement came in as a key breakthrough judgement when it came to the rights of the LGBTQ community, but was shortly overruled in 2013 by the supreme court’s judgement of “Suresh Kumar Koushal and Anr vs Naz Foundation and others”[4] in which a two judges bench of supreme court comprising of judges G.S Singhvi and S.J Mukhopadhyaya overruled the Naz foundation case of Delhi High court and restored section 377 of the IPC,1860. This judgement was then followed by the ground-breaking judgement titled Justice K.S Puttaswamy retd. and another vs Union of India and ors[5] which recognized that the right to privacy is protected under Articles 14, 19 and 21(“The Golden Triangle”) of the constitution of India. In this case, Justice Chandrachud also observed that “sexual orientation” falls in the ambit of the right to privacy and also that the right to privacy is an inherent right guaranteed under Article 21 of the Constitution “which states that “No person shall be deprived of his life or personal liberty except according to the procedure established by law”. This case also criticized the Minimus Hypothesis Principleof theSuresh Kumar Kaushal case and stated that even if the LGBTQ+ comprise of a very small amount of the population, that DOES NOTdeprive them of their fundamental rights. The case emphasized on the crucial aspect concerning marriages in its conclusion part, where it stated “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone.”
The next watershed moment was the coming of the crucial Judgement of Navtej Singh Johar vs Union of India [6], in which the Supreme Court decriminalized S.377 of IPC which stated 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 which may extend to 10 years and shall also be liable to fine”. The court had ruled that a Consensual sexual relationship between two homosexuals is no more an offence under section 377 IPC. This ruling came out to be a turning point for the Homosexual people in the country.
CURRENT SCENARIO
In the present-day scenario, even though homosexuality is decriminalised since 2018, STILL, when it comes to the point of homosexual marriages, many people vehemently oppose the same. As per the landmark ruling of The Supreme Court in the case of “Shakti Vahini vs Union of India”, [7]the court opined, “It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution of India. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected.” Further in K.S Puttaswamy judgment, it was stated that privacy includes preservation of personal intimacies… “marriage” … and also one’s sexual orientation.
In the present-day scenario, a big tussle is going on in the supreme court of India concerning the legalisation of same-sex marriages. In the Month of March 2023, after referring to a batch of petitions filed, the apex court decided that the hearings on the legalisation of same-sex marriages would begin on 18th April, 2023. A Bench headed by Chief Justice of India, D.Y. Chandrachud mentioned that the issue is of “Seminal importance” where it would showcase an interplay between the constitutional rights and other legislative enactments like the “Special marriage act, 1954” on the other hand. Further a 5 judges bench headed by CJI Chandrachud and comprising Justice Hima Kohli, Justice P.S Narsimha, Justice Sanjay Kishan Kaul, and Justice Ravindra Bhatt heard the matter. The Central government, on another hand, opposed the idea of legalisation of Same-sex marriages through an affidavit submitted in the court which stated that, though S.377 Of the IPC has been decriminalised the petitioners cannot claim that there should be a legal recognition given to same-sex marriages in the country since the idea of marriage assumes a union of two people belonging to the opposite sex and this thing is culturally, socially and legally instilled into the idea of marriage and should not be disturbed.
The ongoing tussle is between the main petitioners -Supriyo and Abhay Dang (represented by Senior advocate Menaka Guruswamy, senior advocate Mukul Rohatgi, advocate Arundhati Katju and Govind Manoharan) and respondents (centre)(represented by Solicitor General Tushar Mehta).
DAY 1 HIGHLIGHTS -18th April,2023
The centre raised preliminary objections to the hearing, stating that the only constitutionally allowed forum that can decide upon the creation of a new social relation is the “parliament” making objections as to the fact that which forum is to adjudge such matters. To this, the CJI responded by saying that the government’s objections would depend on the canvas opened up by the petitioners.
Advocate Rohatgi said that Homosexuals should have the same rights as those granted to heterosexuals, since, post the decriminalisation of S.377 of the IPC, the criminality has been done away with. He further contended that as the Special marriage act , 1954 should read marriage between “Spouses” and not man and woman. Solicitor General Tushar Mehta from the respondent side remarked that the question persists in the fact whether or not the socio-legal status can be conferred by the “Judiciary”, since the constitution specifically grants this power to the “legislature”, as , post the delivering of the NALSA judgement and the “Navtej Singh Johar case”, there are ample provisions to protect the interests of the LGBTQ community. He further said that the legislative intent has always been to indicate a relationship between a biological male and female. To which the CJI responded that being a biological male/ female is not just a question of one’s genitals, but Advocate Rohatgi refuted this point. Also further he stated that the constitution doesn’t make two classes of people, but one single class- The People of India. Advocate Rohatgi further stated that even the stigma around Sexual orientation needs to be removed, which can happen only after the constitutional declarations. He further stated when it comes to procreation then it, in today’s scenario, includes advanced medical technologies like, IVF, Surrogacy or even adoption. He further stated that only amending the Special marriage act , 1954 would not serve the purpose. Even other laws, like the Domestic violence act do not . Other bodies like the NCPCR (National Commission for Protection of Child Rights ) have referred to various other enactments like the Juvenile justice act, 2015 [8] and have stated that allowing a gay couple to adopt a girl child would be against the scheme. Also, the NCPCR went on to share international studies and articles indicating that growing up in “same sex” families might have negative impact on child’s brain.
DAY 2 HIGHLIGHTS-19th April , 2023
Centre sought a response from all the states concerning legalisation of homosexual marriages, which CJI appreciated.
Advocate Rohatgi stated that homosexuality CANNOT be confined to closed spaces only. He also said that the legalisation of marriages would lead to less of stigmatisation in public spaces against Homosexual couples. He also highlighted the fact that legalisation would help people define the meaning of their lives and not just limit it to a means of procreation and also highlighted the fact that the right to choose a life partner, lies in the exclusive domain of each individual (which was also held in Shafin Jahan and Asokan K.M[9] and ors a.k.a Hadiya case, 2018). He also suggested the use of gender-neutral terminologies like, “person” instead of man and woman, and spouse, instead of husband and wife. Judges also went on to deliberate upon how the recognition of same-sex marriage would affect the minimum age of marriage. Advocate Singhvi that rights of equality, liberty and fraternity need to be protected. CJI also remarked that it’s not true that homosexuals cannot adopt a child. He further went on to observe that there was no data to conclude that Homosexuality is urban or something.
DAY 3 HIGHLIGHTS-20th April,2023
Advocate Singhvi stated that if a law was to be applied solely to heterosexuals, it would be discriminatory to the Homosexual people. CJI Chandrachud also made a statement that indicated the purpose of the constitution is to expand the constitutional guarantees granted to people of any sexual orientation. Further the question of whether provisions of “rape” would be applicable to homosexual relations, for which Singhvi asked the court that judges could draw a line by stating that rape was an offence that was defined in a ‘Heterosexual way”. At the end of his submissions advocate Singhvi also quoted the landmark judgement of 2015(Obergefell v. Hodges) [10]delivered in the United States that legalised Homosexual marriage. The essence of this quotation was to treat homosexuals in a manner in which they are treated as equals before the law. Advocate Ramachandra said that his petitioners are actually “notelite” and stated that the petitioners belonged to the Dalit and OBC categories. He also pointed out that section 4 of The Special Marriage act,1954, uses the words “persons”, with respect to the solemnisation of marriage, indicating the fact that it was very much capable of accommodating the current situation. He further stated that Article 14 of the constitution incorporates a lack of recognition and not a restriction, and this lack of recognition has created a situation of unconstitutionality. He also stated that the pre-requisite of providing a notice under the Special marriage act, 1954 was against Article 21 of the constitution since the right to marry forms a part of Article 21[11]. Senior advocate K.V Vishwanathan said further that when straight couples who could not procreate were allowed to marry, then why not homosexual people?. when the question came as to the raising of a child in a Homosexual setting, the CJI commented that there are no absolutes as even in Heterosexual marriages, children can get affected if their parents’ marriage is dysfunctional
Advocate Vishwanathan Briefly also stated that specific legislature enactments are not to be awaited for recognition of such rights, he further cited a statement made by Justice Nariman in the Navtej Singh Johar case, which said “These fundamental rights do not depend upon the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality. The fundamental rights chapter is like the North Star in the universe of constitutionalism in India”.
CONCLUSION
As of now, a lot of debate has taken place with regard to granting legalisation to Homosexual marriages in India and is still going and at this juncture, it has become quite crucial to determine whether or not Homosexual marriages should be legalised In India. The very fact that India preaches and practices Personal liberty, freedom and equality, which are constitutionally guaranteed, is indicative of the point that the time has come to recognize homosexual marriages in India. Marriage isnot just a social institution. As per Shakti Vahini vs Union of India, the court held that freedom to marry a person of one’s choice falls in the ambit of Article 21, Article 19 and Article 14 of the constitution, which create the “Golden Triangle”. When such constitutional provisions are given a liberal interpretation, we get to understand that they are very much inclusive of rights granted to every community in the country. Moreover, granting such rights would put them on a pedestal, on which they are at an equal footing with all the other individuals in the society and would in turn lead the society to become a more progressive and inclusive one. Therefore from the above-stated assertions we can form an opinion as to the fact that legalisation of Homosexual marriages definitely is a need of the hour, to remove any stigmatisation that persists in the society with regard tothe people belonging to the LGBTQ community and to grant them an equal status in the society, which is explicitly mentioned in the constitution as well, yet, we are to wait for the judgment of the Apex court on this seminal issue which is still going on in the Court while hoping for the best.
[1] UN General Assembly, Universal Declaration of Human Rights, 10 December 1948
[2] The Indian Penal Code , 1860 ; Act 45 of 1860
[3] 160 Delhi Law Times 277
[4] Civil Appeal No. 10972 of 2013
[5] Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161
[6] AIR 2018 SC 4321; W.P (Crl) No.76 of 2016
[7] (2018) 7 SCC 192
[8] THE JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 NO. 2 OF 2016
[9] CRIMINAL APPEAL NO. 366 OF 2018
[10] 135 S. Ct. 2584 (2015)
[11] Lata Singh vs State of Uttar Pradesh; Writ Petition (crl.) 208 of 2004
Author: Akshita Kaushik
Juris Centre 