Divya M.B.
'Right to Life includes Right to Marriage, Right to Marriage includes right to Same - Sex Marriage.'
The legal and social discrimination against the Lesbian, Gay, Bisexual and Transgendered Community (“LGBT”) is really pathetic and arduous. Every citizen of India is having the fundamental right to life guaranteed under the Article 21 of the Constitution of India, 1950. Right to Life includes Right to marriage. Though it is not expressly mentioned in the Constitution, it is an intrinsic right. There are certain Nations which decriminalize the same-sex relationships as well as the same-sex marriages either through the enactment of legislations or by overturning such laws via judgements.
India also re-joined with these countries at the time when the Apex Court of India upheld the constitutional validity of Section 377 of the Indian Penal Code, 1860 which criminalizes the “carnal intercourse against the order of nature”. But the decision of Supreme Court in a case known as Suresh Kumar Koushal vs. Naz Foundation reversed the progressive decision of the Delhi High Court in ‘Naz Foundation vs. Government of National Capital Territory of Delhi’ where it was held that Section 377 to decriminalise private consensual sex between adults. Though it has laid down that it is legal to marry a same-sex person, the effective method to receive an over-ruling of this judgement has been one of the most wide ranging discussions.
In India, along with the rapid modernisation, there has been a steady growth of revivalist and conservative ideas, the opposition in the name of culture, tradition and religion acts as an obstacle to the growth of liberal legislation.
In this article, I argue that mere decriminalisation of same-sex relationships is not sufficient whereas it is essential to seek legal recognition for the same-sex marriages and same-sex relationships. This article also examines the background of the law, the nations which legalised the same-sex marriage, reasons for why India is not able to legalise the same-sex marriages in India, benefits by legalising the same sex marriage, Suggestions to legalise the same-sex relationships and same-sex marriages in India.
Meaning of Same-Sex Marriage
A Practice of marriage between two men or between two women is
known as Same-Sex Marriage.
Regulation of Same-Sex Marriage
Same Sex Marriages are regulated by:
❖ Law
❖ Religion
❖ Customs.
Background of The Law:
In India, for a law to come into force, both the Legislative and Judiciary wing should give legal recognition. The Suresh Kumar Kaushal case holds a view that there is a presumption that the Legislature would act in the best interests of people. The Apex Court viewed that classification between the persons indulging in physical intercourse in the ordinary course and against the order of nature is intelligible, to hold that Section 377 of IPC, 1860 was not violative of Article 14 of Indian Constitution, 1950. The Court also held that Section 377 is not violative of Article 15 of Indian Constitution, 1950. This is the most important part of the Naz Foundation case provided that the judicial reasoning as to why discrimination on the grounds of sexual orientation was violative of Article 15 and the term “sex” in the Article 15 also includes “sexual orientation”. Finally, the court stated that the decision to repeal Section 377 had to be left to the Parliament as it recognises the minority and the rights of the minority (LGBTQ) should be safeguarded by the majoritarian arm of the Government that is., Parliament.
Legalization of Same-Sex Marriages in Various Nations
At present, there are 29 countries in the world which legalises the same-sex marriage. They are:
Statistics of Same-Sex Marriages Around the World:
A study published by JAMA Pediatrics showed that the rates of attempt to suicide has been reduced among the adolescents where the same-sex marriages has been legalised. That is the proportion of high school students attempting suicide among the sexual minorities fell down by 7% compared to the States that didn’t have same-sex marriage legalisation. Also, a correlation is found between the suicide attempts and youth identifying as Lesbian, Gay, Bisexual, Transgender, Questioning (LGBTQ).
The Youth Risk Behaviour Surveillance System revealed a data in 2015 that 29% of the students who identified as LGBTQ reported suicidal attempts within the last 12 months compared to 6% of heterosexual high school students. The factors contributing to the suicide are depression, lack of support from the family and friends, substance use, family background, etc. The Legalisation of same-sex marriage results in the reduction of suicides by the sexual minorities (LGBTQ). But, at the same time, legalisation of same-sex marriages is not fully acceptable in certain societies. The reasons may vary. The significant media attention and the increased number of sexual minorities might create a social support network.
Reasons for Rejection of Legalization of Same-Sex Marriages in India:
The reasons for rejection of legalisation of same-sex marriages in India are as follows:
In India, marriage is about not only the union of two members but it also unites two families together. Marriage is an institution and it is recognised by the State as a formal recognition. Maine, who establishes the theory of progress from caste ‘status’ to civil marriage ‘contract’. While drafting the law in Calcutta, Maine made the traditionalists brought against the Act where they had agreed to modifications like dropping the exception for Christians and, even it passed in 1872, only a few couples went on to marry under the Act. But it did set a template for the Special Marriages Act, 1954 that would come to replace it. Legalising the same-sex marriage also involves various practical problems such as, right of maintenance, right of inheritance, right to maintain bank accounts, lockers, pension, gratuity, etc. Certain reasons were made that would lead to immorality, promotion of lusts, etc.
Comparing to other Nations which legalises the same-sex marriages like, in Mexico, the same sex couples have the rights in one part of the country but not in the other parts. In Israel, the Authorities of Religion have blocked the civil marriages for both the heterosexuals and homosexuals. Like these, though the countries legalised same-sex marriages, either in the same country or other, they are being discriminated by others.
Conclusion:
It is clear that the anti-discriminatory initiative of Naz Foundation has to be built on to obtain legal and social recognition of long term same-sex relationships through marriages at the same time with the efforts to overturn the Kaushal case. Illegalisation of the same-sex marriages or validating the same-sex marriages through civil partnerships or civil unions or via civil contracts is not a proper legitimation of same-sex marriages in India. As mentioned above, it is not an easy task to bring
amendments in each and every personal laws. Any judicial intervention via judgements should be considered as an interference in the freedom of religion. When the majoritarian part of the government, the Legislature fails to protect the rights of sexual minorities (LGBTQ), then an approach to the Judiciary seeking legislation from the Parliament has to be made.
Suggestions:
The simplest solution for legalisation of the same-sex marriage is the recognition of civil marriage for all under the Special Marriage Act, 1954. There is no advantage in bring civil unions which was done in the West. The challenge of getting a legislative sanction through a civil union is as
severe as that of obtaining sanction via same-sex marriages. Therefore, clear and specific amendments should be made in Special Marriage Act, 954 relating to sexual minorities, that is, LGBT Community. The final option is to seek a judicial ruling that the Special Marriage Act, 1954 has to be read as permitting same-sex marriages on the ground that otherwise it would be discriminatory against same-sex couples and hence unconstitutional.
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