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“Openness may not completely disarm prejudice, but it’s a good place to start” -Jason Collins.
A great German thinker, Johann Wolfgang von Goethe, once said, “I am what I am, so take me as I am” and likewise John Stuart Mill quoted “But society has now fairly got the better of individuality; and the danger which threatens human nature is not the excess, but the deficiency of personal impulses and preferences”, though these cardinal quotes were highly appreciated by the Hon’ble Supreme Court while delivering the famous judgment regarding the decriminalization of certain provisions in Section 377 of Indian Penal Code, 1860 and legalizing the so called taboo in the Indian society for having the same sex relationship in Navtej Singh Johar & Ors. v. Union of India.
After this long battle for recognition finally LBGTQ community got their identity. However, there are certain aspects which are still not answered in the said judgment and one such major topic is ‘MARRIAGE EQUALITY’ which has led to severe hardships for both the society and the pink community.
History plays a major role in evolving the law in the present scenario. One of the major examples is of ancient Rome, where men with wealth and power sometimes married same-sex partners. It wasn’t uncommon for men and women to have sexual partners of same sex, but those with influence could get societal recognition and acceptance. There were some Roman emperors who had two husbands: King Elagabalus married two men. One was a famous athlete and the other was a royal slave.
In India it is the Khajuraho temple in Madhya Pradesh where many scriptures in the temple describe either women erotically embracing other women or men displaying their sexual desires towards each other, the former being more common. These images portray the existence of homosexual behaviour in ancient period. It is evident that the natural identity of an individual should be treated essential to his being.
Therefore, in the absence of marriage equality in 2006, the Humsafar Trust a famous NGO wing began organizing same-sex marriage ceremonies for people in the coastal state of Goa. While not legally recognized, these unions were symbolic and very affirming for many same-sex couples in India.
In the landmark judgment of Shakti Vahini v. Union of India, it was held by the Hon’ble Supreme Court that the right to select a life partner is a fundamental right. This right has been declared as a fundamental right because it is an inherent part of Article 19 and 21 of the Constitution. Similarly, LGBTQ persons constitute a ‘miniscule fraction’ of the country’s population but it cannot be a ground to deprive them of their fundamental rights guaranteed by Part III of the Indian Constitution. Even though the LGBTQ constitutes a sexual minority, members of the LGBTQ community are citizens of this country who are equally entitled to the enforcement of their fundamental rights guaranteed by Articles 14, 15, 19, and 21. Fundamental rights are guaranteed to all citizens alike, irrespective of whether they are a numerical minority or not. Modern democracies are based on the twin principles of majority rule, and protection of fundamental rights guaranteed under Part III of the Indian Constitution.
Under the Indian Constitutional scheme, while the majority is entitled to govern; the minorities like all other citizens are protected by the solemn guarantees of rights and freedoms under Part III of the Indian Constitution. Even though Section 377 is facially neutral, it has been misused by subjecting members of the LGBTQ community to hostile discrimination, making them vulnerable and live in fear on account of their sexual orientation. The half-hearted decision given by the Hon’ble Supreme Court just decriminalizes certain provisions of section 377 of Indian Penal Code, 1860 and allows the persons of LBGTQ community to have a relationship with same sex persons and to fulfil their sexual desires but denying them the right to marry each other is still a very important issue to be addressed.
According to D.Y. Chandrachud J in the case of Shafin Jahan v. K M Ashokan & Ors. Choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith.
The historian John Boswell have argued that same-sex unions were recognized by the Roman Catholic Church in medieval Europe. In the late 20th century, a period when attitudes toward homosexuality and laws regulating homosexual behaviour were liberalized, particularly in Western Europe and the United States. Many counties have legalized the concept of same sex marriage under their respective domain and the prominent examples are the following;
Netherlands was the first country to legalize gay marriage. The marriage bill was drafted and debated in the Dutch Parliament, and finally passed by the House of Representatives and the Senate on December 19, 2000. The law came into effect on April 1, 2001.
In United States of America, the State of Massachusetts was the first state in America to legalize same-sex marriage. During the year 1996, the Former President Bill Clinton of USA signed the Defence of Marriage Act (DOMA), which defined marriage as a union between a man and a woman, thereby denying same-sex couples’ federal marriage; although the Hon’ble U.S. Supreme Court’s in United States v. Windsor decided to strike down provisions contained under section 3 of the Defence of Marriage Act, 1996.
The Hon’ble Supreme Court in Obergefell v. Hodges gave the decision of legalizing gay marriage in all states.
The U.S. Supreme Court in Lawrence v. Texas, struck down sodomy law and elaborated for a broader constitutional right to sexual privacy.
In the year 2012, former President Barack Obama of the United States of America once said that he himself is in favour of gay marriage, and according to him now Americans should allow its gay citizens to say, ‘I do’ instead of ‘I can’t’.
At present, there are around 28 countries which have legally recognized and performed same sex marriages.
The UN Human Rights Council expressed grave concerns over violence and discrimination against individuals based on sexual orientation and gender identity. In 2014, the council passed a resolution to combat anti-LGBTQ violence and discrimination. Two years later in 2016, the United Nations appointed its first-ever independent expert on sexual orientation and gender identity. Also, in EU institutions and member states too recognize same-sex marriage or civil unions as a political, social and human and civil rights issue.
Therefore, the right to marriage as enumerated in the domain of Article 21 should be given to same sex couples, deprivation of this fundamental right guaranteed by the Indian Constitution is a major setback for the LGBTQ community. And if the right to marriage is guaranteed to LGBTQ community it can easily be pledged under the Special Marriage Act, 1954 just by making mere amendments to the said act. Moreover, history owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.
The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognize that homosexuality is a completely natural condition and part of a range of human sexuality. The misapplication of this provision denied them the fundamental right to equality guaranteed by Article 14. It infringes their fundamental right to non-discrimination under Article 15, and the fundamental right to live a life of dignity and privacy and right to marry a partner of one’s choice is guaranteed by Article 21.
The LGBTQ persons deserve to live a life unshackled from the shadow of being apprehended as felons.
-This article is brought to you in collaboration with Advocate Purva Sharma and Advocate Aakash Bhardwaj.