Marriage Equality and Same Sex Couples Right – LGBTQAI+
By- Barsha Samantasinghar, a Student of S’o’A National Institute of Law
INTRODUCTION:
The LGBTQAI+ community refers to individuals who identify as lesbian, gay, bisexual, transgender, queer, asexual, intersex, and other sexual orientations and gender identities. This diverse community faces discrimination and marginalization based on their sexual orientation and gender identity. Legal protections and recognition of LGBTQAI+ rights are essential to ensure equal treatment and opportunities for all individuals, regardless of their sexual orientation or gender identity. It is crucial for laws and policies to prohibit discrimination, provide access to healthcare, and recognize same-sex relationships and gender diversity. Upholding the rights of the LGBTQAI+ community is fundamental to promoting equality and inclusion in society.
In India, the legal recognition of marriage for LGBTQAI+ individuals has been a topic of momentous debate and legal development. The country has seen a progressive and supportive shift in recent years regarding LGBTQAI+ rights, getting pinnacle in a landmark ruling by the Supreme Court in 2018. This ruling decriminalized consensual same-sex relations and laid the groundwork for further legal advancements.
However, according to section 377 of IPC, same-sex marriage is not legally recognized in India. The current legal framework only recognizes marriage as a union between a man and a woman. Despite this, there have been ongoing efforts by LGBTQAI+ activists and allies to advocate for marriage equality and push for legal reforms to recognize and protect the rights of LGBTQAI+ individuals.
It’s important to record that individual states in India have the authority to enact their own laws related to marriage and family matters. Some states have shown support for LGBTQAI+ rights by introducing policies and trump card to provide legal recognition and protection for same-sex couples for equal rights, but these efforts have not yet resulted in nationwide legalization of same-sex marriage.
The journey toward legal marriage equality for LGBTQAI+ individuals in India is ongoing, and it involves a complex interplay of legal, social and cultural factors. As the conversation around LGBTQAI+ rights continues to evolve, it’s likely that there will be further developments in the legal landscape regarding marriage equality in India.
HISTORY:
In India, the legal landscape concerning LGBTQAI+ rights has undergone significant changes in recent years. The decriminalization of homosexuality in India came about through the landmark judgment of the Supreme Court in Navtej Singh Johar v. Union of India in 2018, which struck down Section 377 of the Indian Penal Code. This decision marked a significant milestone in the legal recognition of LGBTQAI+ rights in India.
In terms of International Legal Research, the recognition and protection of LGBTQAI+ rights have been the subject of extensive study and advocacy. International human rights law, including treaties such as the International Covenant on Civil and Political Rights and the Convention against Torture, has been instrumental in advancing the legal protection of LGBTQAI+ individuals around the world. Legal scholars and organizations have conducted research on the evolving legal frameworks and judicial decisions pertaining to LGBTQAI+ rights in various countries, contributing to a growing body of knowledge on this subject.
The history of legal research on LGBTQAI+ issues both in India and internationally reflects a journey of advocacy, litigation, and scholarship aimed at advancing the rights and recognition of LGBTQAI+ individuals within the legal framework. This ongoing research continues to play a crucial role in shaping legal developments and promoting greater inclusivity and equality for LGBTQAI+ communities.
LAW REGARDING LGBTQAI+:
In India, the legal landscape regarding LGBTQAI rights has evolved over time. The most significant development came in 2018 when the Supreme Court of India, in a landmark judgment, decriminalized consensual homosexual acts between adults by striking down Section 377 of the Indian Penal Code. This decision was a major step forward for LGBTQAI rights in India.
However, there are no specific laws in India that comprehensively address the rights of LGBTQAI individuals. The legal framework for LGBTQAI rights in India primarily involves judgments by the judiciary and certain government policies.
That being said, there are some laws and policies that indirectly impact LGBTQAI individuals in India:
1. The Transgender Persons (Protection of Rights) Act, 2019: This law recognizes the rights of transgender persons and prohibits discrimination against them. It also provides for the establishment of welfare boards for transgender persons.
2. The Right to Privacy: In 2017, the Supreme Court of India recognized the right to privacy as a fundamental right under the Indian Constitution. This decision has implications for LGBTQAI individuals in terms of protection from discrimination and intrusion into their private lives.
3. The Protection of Children from Sexual Offences (POCSO) Act, 2012: This law provides protection to all children, including those who may be LGBTQAI, from sexual abuse and exploitation.
It’s important to note that while there have been positive developments in the legal sphere, there is still a need for comprehensive anti-discrimination laws and policies specifically addressing the rights of LGBTQAI individuals in India. The legal landscape continues to evolve, and advocacy for LGBTQAI rights remains an ongoing process in the country.
CASE LAW:
In India, there have been several significant case laws that have had an impact on LGBTQAI+ rights. Here are a few notable ones:
1. Navtej Singh Johar v. Union of India (2018): This landmark case resulted in the Supreme Court of India striking down Section 377 of the Indian Penal Code, which criminalized consensual homosexual acts between adults. The court held that the criminalization of private, adult, consensual same-sex relations violated the fundamental rights of LGBTQAI+ individuals.
2. National Legal Services Authority v. Union of India: In this case, the Supreme Court recognized the rights of transgender individuals and affirmed their right to self-identification of their gender. The court held that discrimination against transgender individuals violated their fundamental rights and directed the government to take steps to protect their rights.
3. Justice K.S. Puttuswamy v. Union of India: Commonly known as the “Right to Privacy” case, this judgment by the Supreme Court recognized the right to privacy as a fundamental right under the Indian Constitution. This decision has implications for LGBTQAI+ individuals in terms of protection from discrimination and intrusion into their private lives.
These cases have played a crucial role in shaping the legal landscape for LGBTQAI+ rights in India and have contributed to the advancement of equality and non-discrimination for LGBTQAI+ individuals.
CONCLUSION:
The legal landscape for LGBTQAI+ rights in India has seen significant developments in recent years. The landmark judgments in cases such as Navtej Singh Johar v. Union of India and National Legal Services Authority v. Union of India have played a pivotal role in advancing the rights of LGBTQAI+ individuals in the country.
The decriminalization of consensual homosexual acts between adults by striking down Section 377 of the Indian Penal Code marked a major milestone in the recognition of LGBTQAI+ rights. Additionally, the recognition of the rights of transgender individuals and the affirmation of their right to self-identification in the National Legal Services Authority case have contributed to greater inclusivity and protection for the LGBTQAI+ community.
While there are no specific comprehensive laws addressing LGBTQAI+ rights in India, these judicial decisions have set important precedents and have paved the way for greater recognition and protection of the rights of LGBTQAI+ individuals. The legal landscape continues to evolve, and there is ongoing advocacy for the enactment of comprehensive anti-discrimination laws and policies specifically addressing the rights of LGBTQAI+ individuals in India.
Reference:
Websites:
- Key Supreme Court verdicts that moved the needle on LGBTQ rights in India – https://indianexpress.com/article/explained/explained-law/key-sc-verdicts-that-moved-the-needle-on-lgbtq-rights-8565720/ by Express News Service, April 21, 2023.
- Evolution of LGBT Rights in India and taking the narrative forward: Living free and equal – https://blog.ipleaders.in/evolution-of-lgbt-rights-in-india-and-taking-the-narrative-forward-living-free-and-equal/ by Yatin Gaur, June 21, 2020.
- Gay rights, psychiatric fraternity, and India – https://www.ncbi.nlm.nih.gov/pmc/ articles/PMC5100112/ by T. S. Sathyanarayana Rao, G. Prasad Rao, M. S. V. K. Raju, Gautam Saha, Mukesh Jagiwala, and K. S. Jacob, September, 2016.
- From LGBT to LGBTQIA+: The evolving recognition of identity – https://www.nationalgeographic.com/history/article/from-lgbt-to-lgbtqia-the-evolving-recognition-of-identity by Erin Blakemore, October 20, 2021.
- LGBTQIA Resource Center Glossary – https://lgbtqia.ucdavis.edu/educated/glossary – by LGBTQIA Resource Center.
- LGBTQIA+ mental health – https://www.mind.org.uk/information-support/tips-for-everyday-living/lgbtqia-mental-health/about-lgbtqia-mental-health/ by Mind Org February, 2020, Revised in 2023.
- A History of LGBT Criminalisation – https://www.humandignitytrust.org/lgbt-the-law/a-history-of-criminalisation/ by Human Dignity Trust Updated on October 2023.
- LGBTQ+ LEGAL HISTORY – https://milnepublishing.geneseo.edu/introlgbtqstudies/ chapter/lgbtq-legal-history/ by Dara J. Silberstein.
- LGBT people & the law – https://www.humandignitytrust.org/lgbt-the-law/ by Human Dignity Trust.
- Navtej Singh Johar vs. UOI – https://www.scobserver.in/cases/navtej-singh-johar-v-union-of-india-constitutionality-of-section-377-ipc-background/ by Supreme Court Observer on June 16, 2023.
- National Legal Services Authority vs. Union of India – https://privacylibrary.ccgnlud.org/case/national-legal-services-authority-vs-union-of-india by Privacy Library on 2014.
- Justice K.S. Puttaswamy vs. Union Of India – https://translaw.clpr.org.in/case-law/justice-k-s-puttaswamy-anr-vs-union-of-india-ors-privacy/ by Centre for Law & Policy Research on 2017.
PDFs:
- Navtej Singh Johar vs. UOI – https://main.sci.gov.in/supremecourt/2016/ 14961/14961_2016_Judgement_06-Sep-2018.pdf
- LGBT Rights Law – https://hls.harvard.edu/wp-content/uploads/2022/08/guide-lgbt-1.pdf
Books:
- Indian Penal Code by Prof. S.N. Misra, 21st Edison
- Indian Penal Code (Bare Act)
- Code of Criminal Procedure (Bare Act)
- The Constitution of India (Bare Act)
