Status Of Same Sex Marriage

KEY TAKEAWAYS

• In India, same-sex marriages are currently not legal. The Indian Supreme Court decriminalised homosexuality under Section 377 of the Indian Penal Code in 2018, however same-sex marriages are still not recognised.
• Even though the Indian government has not taken any official action to recognise same-sex marriage, activists and NGOs have made some attempts to do so. The Delhi High Court received a petition in 2019 asking for the legalisation of same-sex marriages, but the matter is still waiting.
• Being LGBTQ+ still carries a lot of stigma in India due to the country's generally conservative cultural and social views towards homosexuality. However, there has been some progress recently, with the LGBTQ+ community becoming more visible and accepted in the culture.

INTRODUCTION

In recent years, the issue of LGBTQ marriage in India has generated a great deal of discussion and controversy, with many advocates calling for the legal recognition of same-sex marriages. Despite this, same-sex marriages are still not permitted in India, and there are no laws in place that would for them to be recognised. The rights and wellbeing of LGBTQ people in the nation have been significantly impacted by this lack of acknowledgment. The Indian government has not yet taken any significant action in support of same-sex marriage and has not changed its attitude on the issue. Apart from this due to pressure from society to adhere to heteronormative standards and a lack of representation and support within their groups, numerous LGBTQ individuals may find the process of coming to terms with their identity extremely difficult. This may result in feelings of alienation and a struggle to belong .It's critical that members of the LGBTQ community comprehend that their identification is a real and significant aspect of who they are and that, despite society expectations, it's okay to explore and uncover their actual selves.

By invalidating Section 377 of the Indian Penal Code, which had been used to criminalise gay activities, the Hon’ble Supreme Court of India issued a major decision in 2018 that largely decriminalised homosexuality. This decision has encouraged activity and support for the acceptance of same-sex weddings and was largely regarded as a victory for LGBTQ rights in India. To fully recognise the rights of LGBTQ people in India and safeguard their safety from prejudice and discrimination, however, there is still considerable work to be done. The Indian government must take decisive action to recognise same-sex marriage and grant equal rights and protections to every citizens irrespective of which sexual orientation or gender identity they belong to, in order to be in compliance with international humanitarian law.

WHAT DOES INTERNATIONAL LAW SAYS ABOUT THE LGBTQ COMMUNITY?

Increased efforts have been made in recent years to guarantee that LGBTQ people's rights and dignity are upheld in times of hostilities. For instance, the UN has acknowledged that LGBTQ people may be the target of violence and discrimination in circumstances of war and has urged all parties to take action to stop such abuses.

International Humanitarian Law guarantees that everyone, including LGBTQ people, has the right to respect for their inalienable dignity and bodily integrity. The use of torture, cruel treatment, and other types of abuse are all prohibited. For many LGBTQ individuals, the process of discovering their identity can be particularly challenging because of societal pressure to conform to heteronormative norms and the lack of representation and support within their communities. This can lead to feelings of isolation and a struggle to find a sense of belonging. Individuals in the LGBTQ (Lesbian, Gay, Bisexual, Transgender, Queer/Questioning) community frequently go through identity crises, especially after coming out and examining their sexual orientation or gender identity. 

In conclusion, given that the government still does not recognise and provide legal protection for same-sex partnerships, the existing situation of LGBTQ marriage in India is still cause for concern under international humanitarian law. However, recent events have given rise to some optimism for the future, and it is crucial that the Indian government take significant efforts to guarantee that everyone may enjoy equal rights and protections under the law, regardless of their sexual orientation or gender identity.

WHAT IS SECTION 377 OF THE INDIAN PENAL CODE?

The Buggery Act 1533, established during King Henry VIII's administration, served as the model for this law in British India. In accordance with this regulation, "buggery" was defined as "unnatural sexual conduct against God's and man's will." Anal penetration, bestiality, and, in a broader sense, homosexuality were thus made illegal.

In 1828, the Act was repealed, and the Offences Against the Person Act, 1861 was enacted in its stead. This Act broadened the definition of impermissible sexual behaviour, making it simpler to punish both gays and other sexual criminals. The IPC's Section 377 is viewed as having its roots in this statute. This law was eventually replaced by the Offences Against the Person Act, 1861, which succeeded it. Because homosexuality is viewed as unnatural and outside of the established order, this rule was created on the basis of Judeo-Christian intellectual and moral beliefs that view sexuality as primarily being used for procreation.

Naz Foundation v. Government of the National Capital Territory of Delhi (2009) 160 DLT 277 is a landmark Indian case that was decided by a two-judge bench of the Delhi High Court, which came to the conclusion that criminalising consensual homosexual acts between adults breaches fundamental rights protected by the Indian Constitution. The decision led to the legalisation of homosexual behaviour by willing adults throughout India. The Supreme Court of India later overruled this in “Suresh Kumar Koushal vs. Naz Foundation (2014) 1 SCC 1”.

LGBTQ advocates petitioned the Supreme Court, in 2016, professing that Section 377 violated their rights to fornication, sexual autonomy, choice of sexual mate, life, sequestration, quality, and equivalency, as well as the other abecedarian rights guaranteed under Part III of the Constitution. The Supreme Court upheld the Right to sequestration as a introductory indigenous right in August 2017. It also stated that, sexual exposure is an important aspect of sequestration. The Hon’ble SC in unanimously noted that, Section 377 of the Indian Penal Code, 1860, which criminalized carnal intercourse against the order of nature, was unconstitutional in so far as it criminalized consensual sexual conduct between grown-ups of the same coitus. 

CONTENTIONS ON SECTION 377 OF THE INDIAN PENAL CODE 

Section 377 of the Indian Penal Code (IPC) governs synthetic sexual crimes; this has discriminative impacts since it flagrantly violates the freedom and right to sequestration of gay individualities guaranteed by Article 21. The Supreme Court of India, still, has stated that an existent who participates in sexual behaviour of any type with creatures would still be shamefaced of the crime as per the said Section IPC. The read was capsized by the Hon’ble Supreme Court in Suresh Kumar Koushal judgement, which affirmed the indigenous validity of the section and again criminalised consensual private sexual acts in violation of natural order. The Supreme Court of India held Section 377 quantities to unjustified restraint on freedom of expression as private consensual carnal intercourse doesn't harm the decency or public morality in any manner.

Unnatural offences are defined under section 377 of the IPC; anyone who willingly engages in a carnal act negative to the order of nature with any man, woman, or beast is shamefaced of unnatural offences. The commentary attached to the below- mentioned section indicates that the IPC is intended to correct sodomy, and brutishness; in other words, it's directed at the practice of sexual acts, not at sexual subjects, who have come manifested socially constituting turpitude, as homosexuals. It's also essential to keep in mind that India's legislation on crimes against nature doesn't apply inversely. In reality, it substantially targets LGBTQ individualities.

HOMOSEXUALITY ON THE INTERNATIONAL STAGE

Homosexual geste is still punishable by death under Sharia law in Islamic countries. In two distinct countries, Syria and Iraq along with the Islamic State carry out death rulings. These statistics are not released or accepted by the State but, are conveyed from the different credible sources. The maturity of the northern semicircle permits voluntary sexual practices between homosexuals; it is, still illegal in huge regions of Asia, African mainland, and the Gulf Region. In some countries, including Senegal, Saudi Arabia, and Afghanistan, it's a capital offence.

Since further than a century agony, sodomy, which includes similar sexual exertion between individualities of the same coitus as well as those of different coitus, has been a recognised crime in several U.S. countries. Sodomy is confined to two- person sexual exertion; nonetheless, it's sometimes interpreted to include anal commerce or animalism, whereas fellatio is also included in crimes against nature. Generally, courts held that the touching of a child by a grown-up, or having sexual intercourse with the victim, by a child was an unnatural, counter culturist act, since similar action was inconsistent with nature, or normal passions.

In Bowers v. Hardwick 478 U.S. 186(1986), the court framed the issue as “whether the Federal Constitution confers a abecedarian right upon homosexuals to engage in sodomy and hence invalidates the laws of numerous countries that still make similar conduct illegal and have done so for a veritably long time” The answer to which was no.

In Lawrence v. Texas 539 U.S. 558 (2003) was a corner case, wherein the United States SC, struck down sodomy laws throughout the US, making homosexual coitus legal in all US countries and homes. The U.S. Apex Court, in the Lawrence v. Texas case, reversed the United States Supreme Court’s ruling in Bowers v. Hardwick, striking down Texas sodomy law that banned certain sexual acts between two persons of the same coitus. It stated that the pleaders are entitled to admire for their private lives. The state cannot demean their actuality or control their identity by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention from the government.

In Obergefell v. Hodges (576 U.S. 644), The Supreme Court of United States in 2015 ruled 5-4 that states cannot forbid same-sex marriage or refuse to recognise same-sex weddings performed in other states and that same-sex couples have a constitutional right to marry. The Supreme Court ruled that same-sex couples have the same legal right to marry as heterosexual couples have. The Court held that the denial of marriage rights to same-sex couples violated the Fourteenth Amendment's guarantees of equal protection and due process under the law. The Court found that the state bans on same-sex marriage were based on moral disapproval and animus toward gay and lesbian individuals, and had no rational basis or legitimate government interest. The decision in Obergefell v. Hodges legalized same-sex marriage throughout the United States and marked a major victory for the LGBTQ+ community.

Consensual sodomy was also decriminalised by the American Law Institute in 1955, and the MPC didn't incorporate those restrictions in its legislative textbook after that. The United States Supreme Court ruled in the mid-1900s that there exists a right to sequestration defended by the ‘Due Process Clause’ of the Fourteenth Amendment from “snooping with people’s control of their own bodies, dismembering particular connections, and intruding into the inmost sanctum of the home, the bedroom”

The Supreme Court on Monday ruled that being civil laws enjoin employment demarcation grounded on sexual exposure or transgender status, an important palm for lawyers for gay rights and for the arising transgender rights movement and an unanticipated palm by a decreasingly conservative court. The US Apex Court ruled on June 26, 2013, that the Section 3 of the Defence of Marriage Act was discriminative, and that the civil government couldn't poison against wedded homosexual couples in order to produce civil advantages and protections. The 1996 law that stated marriage to be defined as between a manly and a womanish for the purposes of entering government benefits has been supposed unlawful by the United States Supreme Court in the case of United States v. Windsor 570 U.S. 744 (2013). In Romer v. Evans 517 U.S. 620 (1996), the Supreme Court redefined LGBT rights enterprises in 1996, a challenge to a provision of Colorado’s constitution (espoused in a 54- 46 vote) proscribing the state or services thereof from passing any law giving preferred or defended status to homosexuals.

RECENT ADVANCEMENTS RELATED TO THE SAME-SEX MARRIAGES

While same-sex marriage is a good sign that a country is becoming more accepting of the LGBT population. In recent years, India has made considerable progress towards extending the rights of LGBTQ+ people. In a historic decision in 2018, the Supreme Court decriminalised homosexuality. Justice Chandrachud said in the Navtej Singh Johar judgement that the way a person wishes to express intimacy is outside the scope of the state's legitimate interests. The verdict did not, however, order the government to devise or revise legislation to recognise such alternative forms of union or other types of intimacy, despite the fact that it had granted everyone the right to intimacy. In essence, Justice Misra recognised the right to a relationship under Article 21 since the word "union" was meant to allude to friendship rather than marriage. In India, there have recently been certain changes that support same-sex unions. In response to a petition asking for same-sex weddings to be recognised under the Hindu Marriage Act, 1955 the legislation that controls marriage among Hindus in India, the Delhi High Court sent notice to the national government in February 2021. The matter is still continuing after the court ordered the government to reply to the petition. In response to a similar case seeking recognition of same-sex weddings under the Special Marriage Act, a provision that permits persons of different religions or nationalities to marry each other, the Madras High Court sent notice to the central government in March 2021. The matter is still continuing after the court ordered the government to reply to the petition. 

There have been additional recent advances in India towards a broader acknowledgement of LGBTQ+ rights in addition to these court decisions. By invalidating Section 377 of the Indian Penal Code, which had made same-sex relationships illegal, the Indian Supreme Court decriminalised homosexuality in 2018. In India, the LGBTQ+ community is now more widely accepted thanks to this important decision. It is crucial to remember that same-sex unions are not yet legally recognised in India, and that the nation still has a long way to go before the LGBTQ+ population there can enjoy complete equality. However, recent court decisions and other developments indicate that there is rising support for LGBTQ+ rights in India, and that the nation may eventually move towards more acceptances of same-sex couples.

CONCLUSION

Same-sex marriages are currently not legal in India, although the Indian Supreme Court decriminalized homosexuality under Section 377 of the Indian Penal Code in 2018. There have been some attempts by activists and NGOs to legalize same-sex marriages, including a petition filed with the Delhi High Court in 2019, but no official action has been taken to recognize them yet. LGBTQ individuals in India face stigma due to the country's generally conservative cultural and social views towards homosexuality. However, there has been some progress recently, with the LGBTQ community becoming more visible and accepted in the culture.

International humanitarian law guarantees that everyone, including LGBTQ people, has the right to respect for their inalienable dignity and bodily integrity. The use of torture, cruel treatment, and other types of abuse are all prohibited. Despite the landmark decision by the Indian Supreme Court in 2018, there is still considerable work to be done to fully recognize the rights of LGBTQ people in India and protect them from prejudice and discrimination. The Indian government must take decisive action to recognize same-sex marriage and grant equal rights and protections to every citizen, regardless of their sexual orientation or gender identity, in compliance with international humanitarian law.