SAME-SEX MARRIAGE AND LGBTQ+ RIGHTS: CONSTITUTIONAL  AND HUMAN RIGHTS ISSUES 

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Categories: Journal, Uncategorized

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: 

  1. Legitimate Aim 
  2. Equitable  
  3. 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 

  1. Legalizing Same-Sex Marriage in India: A Comparative Analysis of Approaches in  Other Jurisdictions- legal service India 
  2. Landmark Verdict on Same-Sex Marriage Rights in India: Supriya Chakraborty &  Anr. v/s Union of India – legal service India 
  3. India Supreme Court declines to legalise same-sex marriage – BBC. 4. LGBTQ rights in India – Wikipedia

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