LEGALITY TO SAME SEX MARRIAGE?
The Battle to legalize same sex marriages is far from over. Although after the demolition of article 377. LGBTQ+ community thought the next step would be the legalization of same sex marriages but it still seems that India has to come a long way for it.
But one may ask what was Article 377 and why was it demolished?
- Article 377
Article 377 was a colonial-era law in India that criminalized homosexuality. It was a part of the Indian Penal Code (IPC) and was introduced in 1861 during the British rule in India. The law was based on the English Buggery Act of 1533 and was aimed at criminalizing any sexual activity that was deemed unnatural or against the order of nature.
Section 377 of the Indian Penal Code stated that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
The law was used to discriminate against and harass the LGBTQ+ community in India. It was often used as a tool by law enforcement agencies to target and prosecute gay men, transgender individuals, and others who engaged in consensual same-sex relationships. The law led to widespread discrimination, violence, and abuse against the LGBTQ+ community in India.
Over the years, there were several attempts to challenge the constitutionality of Article 377 in the Indian courts. However, these attempts were unsuccessful until 2009, when the Delhi High Court delivered a historic judgment in the case of Naz Foundation v. Government of NCT of Delhi. The court ruled that Section 377 was unconstitutional and violated the fundamental rights of the LGBTQ+ community.
The Delhi High Court judgment was a significant victory for the LGBTQ+ community in India, but it was short-lived. In 2013, the Supreme Court of India overturned the Delhi High Court judgment and upheld the constitutionality of Section 377. The Supreme Court ruling was widely criticized by human rights organizations, activists, and the LGBTQ+ community in India.
However, the LGBTQ+ community did not give up. They continued to fight for their rights and for the repeal of Article 377. In 2016, the Naz Foundation filed a curative petition in the Supreme Court seeking a review of the 2013 judgment. The petition was supported by several other organizations and individuals.
Finally, in 2018, the Supreme Court of India delivered a landmark judgment in Navtej Singh Johar v. Union of India, in which it struck down Section 377 as unconstitutional. The court held that the law violated the right to equality and the right to dignity, and that it had no place in a modern, democratic society. The judgment was widely celebrated by the LGBTQ+ community in India and by human rights organizations around the world.
The repeal of Article 377 was a significant milestone in the fight for LGBTQ+ rights in India. It was a victory for equality, human rights, and the rule of law. It paved the way for greater acceptance and inclusion of the LGBTQ+ community in Indian society.
However, despite the repeal of Article 377, discrimination against the LGBTQ+ community in India continues. Homophobia and transphobia are still widespread, and many members of the community face discrimination, violence, and harassment. There is still a long way to go before the LGBTQ+ community in India can enjoy the same rights and freedoms as other citizens.
In conclusion, Article 377 was a discriminatory and oppressive law that targeted the LGBTQ+ community in India. Its repeal was a significant victory for human rights and equality. However, the fight for LGBTQ+ rights in India is far from over, and there is still much work to be done to ensure that members of the community can live their lives without discrimination.
- The Real Issue
In India, same-sex couples cannot get married or enter into civil unions that are recognized by the government. However, a Supreme Court ruling in August 2022 allows them to enjoy certain rights and benefits similar to those of cohabiting couples.
Interestingly, most heterosexual marriages in India are not registered with the government, and traditional customs-based common law marriages are the most prevalent form of marriage.
Some Hindu priests have been performing same-sex marriage ceremonies both in India and abroad, and there have been hundreds of same-sex marriages among Hindus in India through common law marriage since the late 1980s.
India doesn’t have a uniform marriage law, and citizens have the freedom to choose which law applies to them based on their religion or community. This adds complexity to the issue of marriage regulation, despite it being regulated at the federal level.
In India, same-sex relationships have historically been viewed as a foreign culture-bound syndrome, and as a result, LGBT groups have taken a gradual approach to addressing the challenges faced by the LGBT community in India. Initially, their focus was on removing Section 377 of the Indian Penal Code and implementing non-discrimination laws. However, these groups are now hopeful and working towards achieving the right to same-sex marriage, inspired by the progress made in Western countries. In 2014, Medha Patkar of the Aam Aadmi Party stated her party’s support for same-sex marriage. In 2011, the Punjab and Haryana High Court granted legal recognition of a same-sex marriage after the couple signed an affidavit confirming that they met all the legal requirements. On April 2, 2022, MP Supriya Sule introduced a private member’s bill to legalize same-sex marriage under the Special Marriage Act, 1954.
- Uniform Civil Code
A Uniform Civil Code refers to a single set of laws governing personal matters such as marriage, divorce, inheritance, and adoption that would apply to all citizens regardless of their religion or community. In 2017, a draft of the Uniform Civil Code was published in India that included the legalization of same-sex marriage. The proposed code defined marriage and partnership to include same-sex couples and stated that they would have the same rights and obligations as married couples. The draft also allowed non-heterosexual couples to adopt children and proposed the repeal of all of India’s marriage-related laws.
The adoption of a Uniform Civil Code is a matter of ongoing political debate in India. While the Bharatiya Janata Party (BJP) supports the code, Muslim groups oppose it because it would not be based on Sharia law, unlike the current Muslim personal law that governs Indian Muslims. In 2018, the Law Commission of India solicited public views and requests on the issue but later stated that a Uniform Civil Code was not necessary or desirable at that time. As of February 2020, the Union Government was not considering legalizing same-sex marriage in India.
The only thing why the court is still stalling on this matter is the complexity of our marriage laws. And the way marriage laws are different for different religions. A careful approach and uniform civil code may be the solution of this problem.
