India has made significant progress in protecting the rights of the LGBTQ+ community in recent years. However, the legal recognition of same-sex marriage in India remains a contentious issue. In this article, we will take a look at the historical judgements and human rights enshrined in the Indian Constitution that may impact the recognition of same-sex marriage in India.
The Indian Constitution and Human Rights
The Indian Constitution is a unique document that guarantees fundamental human rights to all citizens. These rights include the right to life, liberty, and equality before the law. Article 14 of the Indian Constitution guarantees the right to equality before the law, while Article 21 guarantees the right to life and personal liberty. These provisions have been used to advance the rights of the LGBTQ+ community in India.
Section 377 and Navtej Singh Johar v. Union of India
Section 377 of the Indian Penal Code, which criminalized homosexual acts, was struck down by the Supreme Court of India in 2018 in the landmark case of Navtej Singh Johar v. Union of India. The Court ruled that Section 377 was unconstitutional as it violated the right to equality and the right to life and personal liberty.
The Right to Family and Choice of Partners
The Navtej Singh Johar judgment also upheld the individual right to family and choice of partners. The Court recognized that the right to family and choice of partners is a fundamental right, regardless of sexual orientation.
Petitions Seeking Legal Recognition of Same-Sex Marriage
In recent years, several petitions seeking legal recognition of same-sex marriage have been filed in Indian courts. These petitions argue that denying same-sex couples the right to marry is a violation of their fundamental rights.
The Centre’s Affidavit and the Sanctity of Marriage
The Centre, in its affidavit filed with the Supreme Court, has opposed the legal recognition of same-sex marriage. The Centre argued that marriage in India is regarded as a “holy union” and “sacrament” between a biological man and woman and should not be extended to same-sex couples.
Referral to a Constitution Bench
On March 12, 2023, a three-judge Bench led by Chief Justice D.Y. Chandrachud referred the petitions seeking legal recognition of same-sex marriage to a Constitution Bench of five judges. The case is listed for final arguments on April 18, 2023.
The Interplay Between Constitutional Rights and Statutory Enactments
Chief Justice Chandrachud has stated that the case involves an “interplay” between constitutional rights of life, liberty, dignity, equal treatment of members of the LGBTQ+ community, and specific statutory enactments that consider only a married union between a biological man and woman.
In conclusion, the legal recognition of same-sex marriage in India is a complex issue that involves the interplay between constitutional rights and societal values. The historical judgments and human rights enshrined in the Indian Constitution have been used to advance the rights of the LGBTQ+ community in India. However, the legal recognition of same-sex marriage in India remains a contentious issue that will require careful consideration by the judiciary.
Amir Hashmi 