Author: Anubhav Yadav, III year of B.A.,LL.B(Hons) from Babu Banarasi Das University, Lucknow.
“Majoritarian views and popular views cannot dictate constitutional rights. The LGBT community possesses human rights like all other sections of society. Equality is the essence of the constitution. "Section 377 is arbitrary.”
Former CJI Deepak Misra
With the above words of former CJI Deepak Misra, it was held clear in Navtej Singh Johar & Ors vs. Union of India that Section 377 violates Article 14, 15, 19 and 21 of the Constitution. Now the contention of the government opposing the legality of LGBTQ marriage seems immaterial.
Marriage is a universal truth that every individual encounters during her/his lifetime. The LGBTQ community has won this battle after years of struggle with the government, orthodox thinkers of society and many other societal agendas. Currently, the community is encountering another major issue challenging their existence in society.
The issue came up in 2018 when two women's approached the marriage officer in South Delhi to solemnise their marriage under the Special Marriage Act. Both the women's approached the Delhi HC for recognition of their marriage, relying on the SC judgement in the Navtej Singh Johar case. In a few months, a chunk of other petitions was filed in the Delhi HC with a similar prayer for recognition of same-sex marriages. After considering all the petitions, Delhi HC asked the centre to file their reply in the matter.
Centre's Response on Legality of LGBTQ Marriage
Last year a petition was filed in the Delhi High Court demanding the legality of the marriage of the LGBTQ community under the Hindu Marriage Act, 1955 and Special Marriage Act. The Solicitor General of India, Tushar Mehta, appearing for the central government, submitted that same-sex marriage is not a fundamental right under the Constitution. Also, he added that a valid marriage in India is a bond between a biological man and a biological woman. Digging into it, Mr Mehta said that the recognition of the establishment of marriage between two individuals of the same gender is neither acknowledged nor affirmed in any uncodified personal laws or any codified statutory laws.
Further, Mr Mehta concluded that whether same-sex marriage is legal or not is a question for the legislature to decide, not the judiciary. To manifest the centres stand on the violation of Article 21, Mr Mehta said that the fundamental right under Article 21 is subject to the procedure established by law, and it cannot be extended to stretch to embrace the fundamental right for same-sex marriage to be recognised under the laws of the country. Mr Mehta, in his submissions, advocated that petitions filed are not maintainable and should be dismissed on the grounds mentioned above. He said decriminalising Section 377 is different from recognising same-sex marriage in India. In his submission, he said that a husband is a biological man and a wife is a biological female for the act of marriage in India.
Indian Judiciary on LGBTQ
The submissions made by the Solicitor General are contrary to the judgement passed by the Supreme Court in the case of Navtej Singh Johar & Ors vs. Union of India, decriminalising consensual sex among homosexuals in India. The Indian High Courts highlighted on several occasions the importance of Article 21 and the rights of an individual. In 2020 the Karnataka HC held that an individual’s right to marry a person of his/her choice is a fundamental right that cannot be refused based on caste or religion by anybody. Here it was made clear by the Karnataka HC that the marriage of an individual is a fundamental right, without mentioning the sexual orientation of that individual.
In the beginning, in the year 2009, the Delhi HC declared Section 377 unconstitutional, being violative of Articles 14, 15 and 16 of the Indian Constitution. In 2014, the NALSA judgement pronounced by the Supreme Court recognised the transgender as a third gender in India. All the fundamental rights are now available to them in the territory of India. After multiple judgements, the Supreme Court protecting rights and privilege for the LGBTQ community, the Madras High Court in 2019 in the matter of Arun Kumar vs. Inspector General of Registration, Tamil Nadu held that transgender people should be identified as women to be bride. Consequently, the Madras High Court expanded the terms of man and women in the definition of marriage in the Hindu Marriage Act, 1955. There are various rulings from the Supreme Court and the High Courts for the upliftment of the LGBTQ community.
Conclusion - Final Arguments
The acceptance of the LGBTQ community as an integral part of our society will take time, similar to other suppressed communities like dalits and other minorities. The provisions in our Constitution talk about equality in life, profession, liberty and many other things for the uplift of the depressed. The world is recognising LGBTQ as a separate community, the Supreme Court of the United States of America recently laid down the laws protecting the LGBTQ at the workplace in the USA. It became one of the landmark judgements in the history of the LGBTQ community. Even in India, the Supreme Court, while pronouncing the judgement in the Navtej Singh Johar case, relied on the Lawrence v Texas judgement by the United States Supreme Court. In this judgement, SC decriminalises the state laws against sodomy. Recently, a Public Interest Litigation (PIL) has been filed in the Supreme Court seeking the endowment of the Transgender Welfare Board or Committee for the investigation of abuse against the transgender community. The bench headed by CJI Bobde expressed the need to develop legislation that may govern the Transgender Welfare Board. It is very pertinent to note that the judiciary has done everything to protect the rights and dignity of the suppressed or hegemonized section of the society.
Although, it is clear from the application of jurisprudence, not only in India but also in foreign countries, that the LGBTQ community need to be accepted as separate gender and community.