The world is changing faster than ever before, and we must adapt to the changes. Although most countries have laws, religions, and customs prohibiting same-sex marriage, legal and societal responses have ranged from celebration to punishment. Many developed countries have recognized same-sex marriage when it comes to human as well as civil rights. Marriage between two men or two women is referred to as same-sex marriage. It would be incorrect to state that a person cannot marry someone who is not of the opposite sex. In politico-legal and socio-economic terms, marriage is seen as one of the most important aspects of a person’s identity. It is a legal institution that recognizes the relationship between two persons under numerous personal laws. Marriage is not only a civil right in today’s world, but it has also earned international respect. The state is required to grant the right to marry. The right to marry is currently recognized as a fundamental right in India, giving a person the ability to pick their spouse. To put it another way, the days of being ashamed of one’s sexuality are long gone. In today’s welcoming environment, we must make room for all people, regardless of gender. It is important to understand that there are more than two genders. All types of people need to be considered as a part of society. When everyone feels accepted and respected, the world will be a happier place.
Homosexuality is described as an attraction between two people of the same sex group, whether romantic or sexual. It is nothing more than a long-term desire to get sexual intimacy from people of the same sex. Scientists have undertaken several studies to answer the question of why homosexuality exists in humans. Few biological hypotheses suggest that genetic factors, the early uterine environment, or both favor an individual’s sexual orientation. According to research, it is a normal and natural fluctuation that is uncontrollable by a person. Even in the twenty-first century some people say it is dysfunctional. It has long been considered a taboo in India. Marriage is a sacrament and a union of two souls between individuals of different sexes, according to most personal laws. Same-sex partnerships are frowned upon as being sinful and in violation of religious values. Lesbian marriages are considered impure since marriage is a personal matter determined by one’s religious faith. People in India frequently believe that it is a product of western culture and that it is a negative impact on other nations. It is not, however, a Western practice, because our ancient scriptures and literature express a somewhat comparable thought.
In India, homosexuality has a long history. Sexual practices between women are depicted as revelations of a feminine universe where sexuality was based on pleasure and fertility in ancient texts like the Rig-Veda, which dates back to roughly 1500 BC, as well as sculptures and relics. The Rig-Veda, one of Hinduism’s sacred texts, says, “Vikriti Evam Prakriti,” which means “what is abnormal is also natural.” Some historical shreds of evidence of same-sex relationships include descriptions of homosexual activities in the Kamasutra, Harems of young boys held by Muslim Nawabs and Hindu Aristocrats, male homosexuality in Medieval Muslim history, and evidence of sodomy in Tantric rites. With the emerging of British Colonialism in India, these experiences started losing their significance.
The way people think about homosexuality has changed dramatically during the last century. Since 1974, homosexuality has no longer been classified as an aberrant behavior and is no longer classified as a mental disease. In other nations, it has also been decriminalized. Since then, anti-discrimination or equal opportunity laws and policies have been adopted in numerous states around the world to safeguard homosexual and lesbian rights. In 1994, South Africa became the first country in the world to enshrine lesbian and homosexual rights in its constitution. Similar regulations exist in Canada, France, Luxembourg, Holland, Slovenia, Spain, Norway, Denmark, Sweden, and New Zealand. The Supreme Court of the United States ruled in 1996 that no state could pass legislation discriminating against gays.
Under the India scenario, the race for recognizing homosexuality began when homosexuals were given recognition as the Third Gender in the case of The National Legal Services Authority v. Union of India & Ors.[i] The decision should be applauded for criticizing gender-based discrimination and for bringing a ray of hope and promise to those who had been left out of the legal framework. The division bench gave legal identity to all the individuals whose gender doesn’t match with the accepted standards of society. The decision was a game-changer, affecting current regulations on adoption, marriage, inheritance, and other topics. The general concepts of male and female genders were abandoned in favor of expanding legal and social rights to third genders.
In the case of Naz Foundation v Government of NCT of Delhi and Others,[ii] section 377 of the IPC was challenged. The Delhi High Court struck down sections of the Indian Penal Code that are found to violate Articles 14, 15, and 21 of the Indian Constitution. The High Court refrained from finding Section 377 in its entirety unlawful. Non-consensual penile non-vaginal sex and non-consensual penile non-vaginal sex involving minors were still prosecuted as criminal offenses. According to the Delhi High Court, societal morality must give way to the concept of constitutional morality.
In Suresh Kumar Koushal & Anr v Naz Foundation & Others,[iii] the Supreme Court of India overruled the Naz Foundation judgment. The LGBT community constituted just a “minuscule fraction of the total population,” according to a two-judge panel, and the fact that the powers under Section 377 were exploited by the police was not a reflection of the Section’s constitutional viability. It was also decided that Section 377 IPC applied regardless of age or consent and that it did not outlaw a specific individual, identity, or orientation. Only a few acts were identified in Section 377 that, if committed, would constitute a crime. The Court went on to say that such a prohibition applied to all sexual behavior, regardless of gender identification or orientation.
The Supreme Court’s backward reversal of the Naz Foundation case sparked outrage among civil society, liberal circles, and substantial sections of the media, prompting calls for the two-judge bench decision to be reconsidered by a larger Supreme Court bench. A writ petition challenging the Suresh Kumar Koushal decision was referred to a five-judge constitution bench, which unanimously reversed the decision in the case of Navtej Singh Johar v. Union of India.[iv] The findings of the Navtej Singh case are:
- Violation of Article 14: Because the non-consensual activities that are criminalized under Section 377 of the IPC have already been identified as penal offenses under Section 375 of the IPC and the POCSO Act, Section 377 of the IPC lacks a reasonable relationship to protect women and children. Instead, the presence of Section 377 of the IPC in its current form has had a distasteful and objectionable collateral effect, in which even ‘consensual acts,’ which are neither harmful to children nor women and are performed by a specific group of people (LGBTs) who share some inherent characteristics defined by their identity and individuality, have been wrongfully targeted.
- Violation of Article 15(1): A whole class of people was subjected to discrimination based on sexual orientation under Section 377 of the IPC. This was an obvious violation of the Article 15(1) of the Constitution of India.
- Violation of Article 19: Public order, decency, and morality as grounds for restricting the fundamental right to freedom of speech, including the right to choose, cannot be acknowledged as legitimate limitations to sustain the constitutionality of Section 377 of the IPC. Section 377 of the Indian Penal Code encompasses private acts of adults, including members of the LGBT community, that are not only consenting but also innocent, as they do not disrupt public order or harm public decency or morality.
- Violation of Article 21: Both human dignity and the newly established fundamental right to privacy are violated by Section 377. Because sexual orientation is an essential and innate aspect of privacy, the right to privacy encompasses the freedom of every individual, including LGBT people, to freely express their sexual preferences without fear of being prosecuted or criminally prosecuted. In its current form, Section 377 IPC infringes on the right to dignity and privacy guaranteed by Article 21 of the Constitution.
In the past, the LGBT community has been subjected to violence, harassment, discrimination, exclusion, stigmatization, and prejudice in both society and the workplace. The decriminalization of homosexual behavior as a result of the Navtej Singh case is a huge victory for the LGBT community. Employers, particularly multinational corporations, will now have the option of establishing anti-discrimination policies that are consistent with their global standards. It is worth emphasizing, however, that the Navtej Singh Case only decriminalizes homosexuality and does not recognize “same-sex relationships.” The judgment was passed so that the people of the LGBT community can live with dignity and respect in society. Recently, despite the legalizing of same-sex relationships, a petition was filed in the Delhi High Court in the case of Dr. Kavita Arora and Anr. V. Union of India and Anr.[v]seeking registration of their marriage under the Special Marriage Act, 1954 after a government official denied solemnizing their marriage due to their sexual orientation. They contend in their petition that they need to nominate one’s partner in health and life insurance, to safeguard one’s right to inheritance, and to assure access to the joint home, financial, and other resources which have never been more essential than during the pandemic.
The Central Government contended that homosexual couples “cannot claim a fundamental right to same-sex marriage.” It also contended that living together as same-sex partners is not equivalent to the Indian family unit notion of a husband, wife, and children. The Centre informed the court that registering homosexual couples’ marriages would also violate existing personal and codified law rules. The government argued that legal recognition of same-sex marriage is primarily a legislative topic that cannot be solely adjudicated by judges.
Recognition of same-sex relationships as valid and on par with heterosexual marriages will very certainly necessitate proper legislation, which is still years away. It will also necessitate a significant societal reform as well as a more liberal and progressive mindset on the part of the ruling classes. Despite the learned Justices’ eloquent words and powerful language, the LGBT community will continue to be at a disadvantage until this happens. Since same-sex couples do not have the same legal recognition as married heterosexual couples, even sympathetic businesses will have to evaluate the ability to pay provident funds, pensions, gratuities, and other benefits to LGBT employees’ spouses or partners on a case-by-case basis. Extending such benefits to a same-sex spouse identified by an employee will rely on third-party service providers including insurers, pension and provident fund authorities, and others.