Author: Teja Ram Soni, Parul university, Vadodara
INTRODUCTION
The word “LGBTQ” encompasses a broad range of individuals who do not fit the heteronormative definition of sex and gender. Since the term lacks a definitive definition, the acronym is sometimes used with the “+” symbol to indicate that the collective is not all-inclusive. However, the phrase refers to queer, transgender, gay, bisexual, and lesbian. It encompasses both gender and sexuality. Transgender is a gender that does not fit into the male/female dichotomy, whereas gay, lesbian, and bisexual are sexual preferences of individuals. In general, the term “queer” is used to refer to the collective’s “queerness.” The phrase encompasses other terms such as asexual, intersex, etc. It’s a complicated term that calls for knowledge of gender. and sexual preference are aspects of the human condition. This collective seeks to establish their own identities within the range of gender and sexuality, challenging the heteronormative standard that has been the default.
In 1860, the British social authorities introduced Section 377 into the Indian Penal Code. This clause criminalized homosexuality and other sexually dangerous actions. The first LGBTQ association, the AIDS Bhedbhav Virodhi Andolan (ABVA), was innovated in Delhi in the 1990s to fight against the demarcation and violence LGBTQ people faced. In 2001, the non-governmental group Naz Foundation filed a public interest action (PIL) in the Delhi High Court querying the validity of Section 377. The Delhi High Court declared Sec. 377 invalid and interdicted homosexuality in its 2009 ruling.
ABSTRACT
This study explores the nonfictional elaboration and the factors influencing the social and legal status of this marginalized minority as it dives into the complex dynamics underlying same-commerce linkages in the Indian terrain. Despite differing voices, an examination of ancient Indian handbooks suggests a historically progressive society that predates the post- social period. The duty of lawless penalties on same- commerce connections, especially under Section 377 of the Indian Penal Code, began from British social influence, creating a hostile terrain marked by imprisonment and fines. The difficulties this vulnerable population faced were made worse by India’s social system. The 21st century witnessed a global movement against discrimination, herding India to defy its own impulses. The vital Navtej Johar case marked a turning point as the Supreme Court interdicted same- commerce connections, furnishing a legal foundation for the community’s rights and identity, further corroborated by posterior insulation judgments. Despite judicial advancements, challenges persist, revealing the nuanced interplay of social and legal determinants impacting the status of same- commerce connections in India
USE OF LEGAL JARGON
Composition 14 equality before the law of the Indian Constitution embodies the principle of equality before the law and prohibition of any unreasonable discrimination among the people. The term “equality before the law” in the section denotes that the law should be applied equally to all people and that similar cases should be handled also. All citizens of legal age and understanding have the same rights to file suits, be sued, and face prosecution for the same kinds of crimes, anyhow of their colour, religion, income, social standing, or political power. In the case of Maneka Gandhi v. Union of India, the court held that Composition 14 strikes at the arbitrariness in state conduct and ensures equality of treatment. It also laid down that the composition forbids class legislation but doesn’t enjoin reasonable type for the purpose of legislation. also, the other part of the section addresses about “equal protection of law” which implies that all persons in similar circumstances shall be given the same rights and arrears. As there should be no distinctions made between individualities and that the law should be administered equally to all situations. In lieu of the interpretation of this section, it draws our attention to the fact that legalizing same- commerce marriage would be in line with this provision, as it would grant equal rights and protections to all citizens, anyhow of their sexual exposure. As if an existent isn’t defended with respect to their sexual exposure, also it becomes violative of the first part of
(1) (a) freedom of speech and expression This composition of the Indian Constitution reflects the philosophy of securing the fact that every citizen should have the liberty of study and expression. This right can be considered of utmost significance as this is one of the introductory rudiments of a healthy, open-inclined and flourishing democracy.
THE PROOF
Same commerce marriage under the special marriage law an option which ought not to raise religious hackles is to seek a correction to the Special Marriage Act, 1954(‘SMA’) to permit same- commerce marriages. The SMA is a temporal legislation that facilitates marriages between people of different persuasions or those who don’t wish to be bound by their particular laws. rather of a religious form, a Marriage Officer registers the marriage. In its being form, the SMA seems to apply to heterosexual couples, since it provides that the joker should have attained the age of twenty- one times and the womanish the age of eighteen times. But it’s n’t delicate to accommodate same- commerce marriages within the frame of SMA. It would only be necessary to amend Section 4(c) so that it reads that a party, if virile, should have attained the age of twenty- one times and if womanish, should have attained the age of eighteen times and to add a specific provision that same- commerce marriages are permitted. In any case, indeed if particular laws are amended to recognize same- commerce marriages, the SMA would have to be amended to accord the same recognition to connections between persons belonging to different persuasions. While a correction is fluently the swish legislative option, it’s one that might be delicate after the recent conformation of a BJP government. While the Congress and the CPI(M) both included decriminalisation in their manifestos for the Lok Sabha choices, the BJP was clear in its support of the judgment – a party leader editorializing that homosexuality is an unnatural act that can’t be supported. further recently, the Rashtriya Swayamsevak Sangh, the BJP’s ideological parent, has stated that while they are against glorifying homosexual behaviour
, it’s debatable whether it should be criminalised.64 While the change in question is easy to draft and can’t be said to intrude with religious freedoms, it’s bound to induce oral opposition. The correction to the SMA would be similar to the laws permitting same- commerce marriages enacted in other countries. moment, sixteen countries have enacted analogous laws starting from the Netherlands in 2000 to England and Wales in 2013. also, thirteen countries in the USA have passed laws permitting same- commerce marriages. But there are severalanti-same- coitus enactments as well. The US Congress enacted the Defence of Marriage Act 1996(‘DOMA’) to deny civil benefits to same- commerce couples married under State laws. While DOMA was struck down by the US Supreme Court, the challenge to DOMA in the Supreme Court was roundly defended by Popular groups, though the Obama Administration didn’t support the Act.
CASE LAWS
According to the court’s interpretation in the Emmanuel v. State of Kerala case, every citizen has the right to free speech and expression, which may be subject to reasonable limitations in the interest of public order, state integrity, morality, decency, etc., handed that the limitations are supported by a law that has statutory force. still, legalizing same- coitus marriages doesn’t violate morality or public order principles; on the negative, it violates this composition since, under the right to free speech and expression, an existent has the right to express themselves, and the lack of recognition prevents citizens from freely expressing their sexual exposure and choices. analogous to the court’s major ruling in Navtej Singh Johar the court did lay emphasis on the fact and gave its verdict on the analysis that Sec. 377 of the IPC had a nipping effect on the right to freedom of speech and expression as it denied the right to express one’s sexual identity through speech and choice of romantic/ sexual mate. Incipiently, legalizing same- coitus marriage could be seen as an expression of one’s identity and choice of mate, and therefore defended under this provision.
Incipiently, a court decision that the SMA must be interpreted to allow same- coitus marriages because it would be unconstitutional and discriminative against same- coitus couples is sought. This proposition is supported by multiple transnational precedents. A marriage enactment that banned same- coitus marriages was declared unlawful by the Supreme Courts of three US states Massachusetts, Connecticut, and Iowa. All three courts noted that the freedom to marry is an individual liberty right that also includes an equivalency element, and they invoked the due process and equal protection clauses. A group of people cannot be denied the right of marriage granted to others, without a veritably strong defence, which, the court held, didn’t live. The maturity view of the US Supreme Court in striking down DOMA didn’t hold that same- coitus marriages were an indigenous right. It largely grounded its opinions on the indigenous structure that grants the States authority over the description of marriage. But as refocused out by Justice Scalia in the differing judgement, the maturity view paves the way for a claim that same- coitus marriages are an indigenous right. However, he said, quoting from the maturity opinion, If DOMA unconstitutionally burgled same- coitus couples of “personhood and quality” in countries that permitted the practice. Indeed, after the Supreme Court decision, a Superior Court of New Jersey held that the state government 68 Michael J. Klarman, From the Closet to the Altar Courts, Backlash and the Struggle for Same- coitus Marriage (2012). Goodridge v. Deptt. of Public Health, was violating New Jersey’s Constitution by denying civil benefits to same- coitus couples by not allowing them marry. The indigenous Court of South Africa has held that marriage laws that didn’t permit same- coitus marriages were violative of Section 9 (3) of the Constitution, the state is prohibited from discriminating against individuals on the basis of race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth, either directly or indirectly.” A Court of Appeal for Ontario ruling, which reformulated the common law definition of marriage as “the voluntary union for life of two persons to the rejection of all others,” is the first of several Canadian perspectives. The ruling claimed that the common law definition of marriage, as it applied to “one man and one woman,” violated the equivalency rights of same-coitus couples under Section 5(1) of the Canadian Duty of Rights and Freedoms. However, a High Court in England rejected the idea that the European Convention on Human Rights was infringed by forbidding same-coitus marriages. The Court distinguished the decision of the indigenous Court of South Africa by, among other effects, pointing out that in South Africa there was no statutory provision similar as the Civil Partnership Act of the United Kingdom, which recognized, on a base of broad parity, the status of a long term same- coitus relationship. Indeed, the Supreme Court of Vermont had held that the State can decide whether recognition should be conferred within the frame of a marriage or a resemblant domestic cooperation. After Naz Foundation, this option appeared veritably promising. The decision had emphasised that Composition 15 of the Constitution conferred particular autonomy on all individualities and banned demarcation on the base of religion, race, estate, coitus and place of birth. The Court had recognised that a common thread runs through these – they’re either inflexible characteristics or number an abecedarian choice. It further handed that similar grounds that can potentially be used to vitiate particular autonomy also have to stand the test of strict scrutiny in court. The Naz Foundation court editorialized that coitus as a ground includes within it sexual exposure since “demarcation on the base of exposure is predicated in stereotypical judgments and generalisations about the
FAQ
1. How is same-sex marriage regarded legally in India?
In India at the moment, Same-sex marriages are still prohibited even after homosexuality was decriminalized in 2018 (Navtej Singh Johar v. Union of India).
2. Why does India not accept same-sex marriage?
Only heterosexual relationships are covered by Indian marriage laws, including the Hindu Marriage Act, Christian Marriage Act, and even the Special Marriage Act. The acceptance of same-sex marriage is further complicated by cultural and religious opposition.
3. Which constitutional rights lend credence to the argument for same-sex unions?
Article 14 (Equality Before the Law): The equality principle is broken when same-sex marriage rights are denied. The Freedom of Expression, Article 19(1)(a): Limiting marriage privileges prevents people from expressing their sexual orientation and partner preference.
The exclusion of same-sex couples violates Article 21 (Right to Life and Dignity), which states that marriage is a necessary component of both life and dignity.
4. How can India legalize same-sex marriage?
One workable alternative is to amend the Special Marriage Act of 1954 to specifically permit same-sex unions. Existing legislation can be reinterpreted by the judiciary to acknowledge same-sex weddings as protected constitutional rights.
5. Are there precedents for same-sex marriage around the world?
Yes, same-sex marriage is legal in the United States, Canada, South Africa, and the Netherlands. These countries’ courts protected the rights of same-sex couples to marry by upholding the values of equality, dignity, and freedom.
6. What function does the SMA (Special Marriage Act) serve?
Interfaith weddings are permitted by the SMA, a secular legislation. Without affecting individual laws, changing it to permit same-sex unions can offer a nonreligious route to marital equality.
7. What are the objections against same-sex unions?
Same-sex marriage is opposed on the grounds that it goes against established religious and cultural norms. Additionally, others contend that it upends the traditional family unit.
8. What comes next in India’s battle for same-sex marriage?
Public awareness, societal change, and legal activism are all necessary for the campaign. To achieve marital equality, judicial decisions, legislative changes, and societal acceptance are essential.
CONCLUSION
Once, the LGBTQ+ community set out to regain its identities and rights in the culturally rich and diverse country of India. With the landmark Navtej Singh Johar ruling in 2018, the Supreme Court struck down Section 377 of the Indian Penal Code and decriminalized homosexuality, giving their story a boost. Despite its enormity, this win was only the first step.
Marriage was seen as a holy union in this region of rich customs, closely entwined with family and religion. Nevertheless, same-sex couples were marginalized and denied the opportunity to get married and lead respectable lives. For them, the promises of equality, freedom, and dignity found in Articles 14, 19, and 21 of the Constitution appeared far off. They craved the same respect and safety accorded to heterosexual couples.
The Special Marriage Act (SMA), a secular law intended for interfaith marriages, offered some hope. If changed, same-sex marriages could be accepted without infringing on religious rights. However, there was opposition to the route from political figures, traditionalists, and even the country’s social fabric.
But this story is not yet complete. It is a story of resiliency and hope, of a community working toward a time when love—regardless of gender—will be accepted and honoured. India’s road to legalize same-sex marriage is evidence of the persistent struggle for equality and demonstrates that, at its foundation, everyone has the freedom to love.