THE LAWWAY WITH LAWYERS JOURNAL
VOLUME:-17 ISSUE NO:- 17 , NOVEMBER 11, 2024
ISSN (ONLINE):- 2584-1106
Website: www.the lawway with lawyers.com
Email: thelawwaywithelawyers@gmail.com
Authored by:- R. Jemima Christy Rebekah
SAME-SEX MARRIAGE AND LGBTQ+ RIGHTS: CONSTITUTIONAL AND HUMAN RIGHTS ISSUES
Abstract
The constitutional and Human Rights issues encompass the legal recognition of same-sex marriages. In the Indian Constitution, articles 14 and 21 focus on the rights of an individual. These articles ensure “equality before the law” and “right to life and personal liberty.” This is considered as the foundation for supporting LGBTQ rights. The important landmark judgments such as Navtej Singh Johar v. Union of India and Justice K.S. Puttaswamy v. The Union of India, these cases transformed the legal view of the LGBTQ acknowledging individuals by decriminalizing homosexuality and acknowledging the right to privacy as a fundamental right. The decriminalization of the same sex has been a significant success and the lack of legal recognition of same-sex marriages sustains inequality and discrimination against LGBTQ+ couples. The ethics confirmed in the landmark judgments should broaden to include the legal recognition of same-sex marriages by securing equal treatment and protection for all citizens under the law, regardless of sexual position.
This research looks to provide relationships between LGBTQ rights and constitutional pledges in India by using thorough examination of constitutional provisions, judicial precedents, and the broader societal implications. Finally, the study pushes the judicial and legislative activity to protect the LGBTQ rights of individuals, and it advocates legal actions which promote equality and humanity for all.
Keywords
- Same-sex marriage
- LGBTQ+ rights
- Human Rights
- Constitutional Provisions
- Legal recognition
- Decriminalization of homosexuality
Introduction
Same-sex marriage and LGBTQ+ rights become the most discussed matter in contemporary constitutional subjects in India, especially after the progressive decriminalization of
homosexuality in 2018 which happened through the landmark judgment of Navtej Singh Johar judgment. This judgment acknowledged to protect the fundamental rights of the LGBTQ+ community. Still, the legal recognition of same-sex marriage stays an unacknowledged issue which leaves the LGBTQ+ individual’s rights as a partial recognition under the law. This study explores the constitutional and human rights issues that arise from these legal matters, concentrating on the promises provided under Article 14 and Article 21 of the Indian Constitution. These provisions combined with the judgment of Navtej Singh Johar and Puttaswamy, laid the foundation for a prospective legal structure for same-sex marriages.
Constitutional Provisions: Article 14 and 21
Article 14
“Equality before law
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”1
This promises equality before the law and the equal protection to all the individuals which prohibits the discrimination based on sex and on any grounds. This principle of equality creates a keystone for many lawful actions intended at protecting the rights of underserved communities. Rejecting LGBTQ+ individual’s legal recognition in the case of same- sex marriage stands for a clear violation of the equality protected by Article 14. The constitutional provision assures any law that discriminates against a certain group of community should endure the test of reasonable classification and arbitrariness.
The major reason the rejection of the same-sex marriage recognition is commonly embedded in traditional and cultural views on marriage, which explains it strictly as a connection between a man and a woman. Although, these views cannot take a stand in the modern constitutional framework which values the tag of equality for all. Supporting the denial on marriage for LGBTQ+ couples can be creating an unequal concession which parts the favor of heterosexual couples. The equality guaranteed by Article 14 violated by this difference, without any reasonable justification.
1 Constitution Article, Article 14 in constitution of India, Indian kanoon (https://indiankanoon.org/doc/367586/)
Article 21
“Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure established by law.”2
The Indian Judiciary system has adopted article 21’s right to life and personal liberty widely to include the right to live with dignity, self-determination and privacy.
The Puttaswamy judgment, which recognized privacy as a fundamental right that includes the freedom to make confidential decisions about one’s sexual orientation, was significant in expanding the boundaries of Article 21. The recognition of the right to privacy in Puttaswamy case gave a solid base for claiming that the state’s refusal to recognize same-sex marriages violates on individual’s personal liberty and dignity. Under Article 21, protection of dignity and self-determination is violated by the state’s involvement in the rejection of LGBTQ+ community their right to marriage even though marriage is a very personal and private decision.
Landmark Judgments
Navtej Singh Johar v. Union of India (2018)
Petitioner: Navtej Singh Johar
Respondent: Union of India
FACTS:
A writ petition was filed on 26th April 2016 by Navtej Singh Johar to challenge the constitutional legality of Section 377 of Indian Penal Code (IPC) which makes it illegal sexual intercourse between same-sex adults in private. The petitioner requested in their appeal that the “right to sexuality,” “right to sexual autonomy” and “right to choose a sexual partner,” declared as an element of the right to life protected by Article 21 of the Indian Constitution. The petitioner also requested that section 377 of the Indian Penal Code declared illegal.
2 Constitution Article, article 21 in constitution of India, Indian Kanoon (https://indiankanoon.org/doc/1199182/)
HISTORY:
The Delhi High Court first considered portions of section 377 unconstitutional in Naz Foundation v. Government of NCT of Delhi. Because of various individuals and religious groups challenged the judgment, the Supreme Court of India overruled the judgment of Delhi High Court in 2013 in Suresh Kumar Koushal v. Naz Foundation, said that the matter and the final decision is up to the parliament. The said matter of section 377 was rejected in 2015.3
JUDGMENT:
The judgment recognized that the legislation violated against fundamental rights which is protected by the Indian Constitution, including the right to privacy and stressed the importance of individual autonomy, equality, and dignity. In India, this judgment was viewed as a major victory for the LGBTQ+ rights.4
Justice K.S. Puttaswamy v. Union of India (2017)
Appellant: Justice K S Puttaswamy
Respondent: Union of India and Others
FACTS:
A retired High Court Judge filed a petition against Union of India in 2012 before a nine-judge bench of the Supreme Court challenging the unconstitutionality of Aadhaar because it infringes the right to privacy, which was created on an opinion from the constitution bench to decide whether the right to privacy was promised as an independent fundamental right under the Indian Constitution.
JUDGMENT:
A nine- judge bench of the Supreme Court of India ruled a landmark judgment on 24th August 2017, by supporting the fundamental right to privacy under article 21 of the Indian Constitution.
3 https://lawlex.org/lex-bulletin/case-summary-navtej-singh-johar-v-union-of-india-thr-secretary-ministry-of law-and-justice/25100
4 https://en.wikipedia.org/wiki/Navtej_Singh_Johar_v._Union_of_India
“Protection of life and personal liberty
No person shall be deprived of his life or personal liberty except according to procedure established by law.”
It is declared in the judgment that the privacy is said to be a key element in the Part III of the Indian Constitution, which enacts the fundamental rights of the citizens. The Supreme Court also said that all laws and regulations must abide by the constitution and that must delicately smash the balance between the constitutional goal and the right of privacy for individuals
regardless of circumstances. The court also held that the right to privacy is not unacceptable, and any state or non-state actor violates someone’s right to privacy should fulfil three conditions, which are:
- Legitimate Aim
- Equitable
- Lawfulness
Implications on Same-Sex Marriage Recognition in Human Rights
❖ Right to Equality and Non- Discrimination
The denial of recognize same-sex marriages becomes an important part in Human Rights Implications, especially the parts of non-discrimination and Equality. Same- sex couples are rejected to enjoy the legal rights and protections that a couple from the heterosexual community enjoys which includes inheritance rights, benefits relating to tax and marital rights in the healthcare matters, because of the absence of the legal recognition. Under the law, the denial of equal protection violates the international human rights rules, including that incorporated in the International Covenant on Civil and Political Rights (ICCPR), which India has ratified.
In the Constitution of India, the rule of non-discrimination is also enshrined in Article 15, which clearly prohibits the discrimination based on sex and various other grounds. The absence of legal recognition for same-sex marriages are interpreted as a type of sex- based discrimination because it unjustly targets the sexual preference of an individuals.
❖ Right to have Dignity and Family
Every individual has the right to marry and found a family is recognized as a fundamental human right under various international conventions which includes Universal Declaration of
Human Rights (UDHR). The denial to allow right to marriage for same-sex couple violates the fundamental rights and compromises their dignity. Further, marriage is a cultural norm with deep symbolic and emotional significance, and it is not only a legal agreement between two parties. The denial of same-sex marriage leads the state competently rejects them a possibility to live with complete dignity and respect in the society.
❖ Right to Personal Liberty and Autonomy
The denial to recognize the same-sex marriages also violates the personal liberty and autonomy of individuals under Article 22 of the Indian Constitution, which is protected under this Article. The state’s role in governing should be limited to safeguarding the fairness and equality in personal relationships, not imposing arbitrary limitations based on sexual orientation. The state imposes an undue burden on their ability to make autonomous resolutions about their personal lives by the denial of same-sex marriages.
Judicial recognition and Legislative actions for legalizing same-sex marriages in India Judicial recognition
In the landmark case of Navtej Singh Johar v. Union of India (2018), the Supreme Court decriminalized consensual same-sex relationships by prominent section 377 of the Indian Penal Code. This judgment was a major step forward for LGBTQ+ rights, highlighting the principles of equality, dignity, and privacy.
Therefore, the Supreme Court has taken more circumspect strategy if it comes to the recognition of same-sex marriage. In the case of Supriya Chakraborty & Anr. V. Union of India (2023), the supreme court denied legalizing same-sex marriages, by pointing out that decisions like this should be made by the Parliament. However, the court acknowledged the need for some legal rights and benefits for same-sex couples and accepted to set up a panel to consider the issues by accepting the government’s proposal.
Legislative action
Legislative action is needed to legalize the same-sex marriages in India. By amending the existing laws such as Special Marriage Act to add the same-sex couples in the act. The Supreme Court’s judgment in the Supriya Chakraborty’s case emphasized the significance of legislative intervention to address the issue extensively.
Recent judgment and Future possibilities
Currently, in India same-sex marriages are not legally recognized. The recent Supreme Court judgment has laid down the duty on the parliament to take legal actions. Campaigns for the public awareness and advocacy is still particularly important in the battle for marriage equality in India.
Conclusion
Under Articles 14 and 21 of the Indian Constitution, the human rights, and constitutional rights issues around the legal recognition of same-sex marriages are complicated in India but they are proven in the fundamental assurances of equality and personal liberty. The landmark judgments like Navtej Singh Johar and Puttaswamy have implemented the foundation for the legal recognition of same-sex marriages. However, the constant rejection on rights for same sex marriages addresses a significant gap in the realization of complete equality for the LGBTQ+ community. Further, the judicial recognition and legislative action will be critical to provide the rights to all individuals without regard to sexual orientation are fully protected under the law.
Reference
- Legalizing Same-Sex Marriage in India: A Comparative Analysis of Approaches in Other Jurisdictions- legal service India
- Landmark Verdict on Same-Sex Marriage Rights in India: Supriya Chakraborty & Anr. v/s Union of India – legal service India
- India Supreme Court declines to legalise same-sex marriage – BBC. 4. LGBTQ rights in India – Wikipedia
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