Around two years back, the Hon’ble Supreme Court of India, in its historical judgement of Navtej Singh Johar v. Union of India, decriminalized homosexuality in the country. However, despite this progressive judgement, specific questions incidental to homosexual relationships remained unaddressed by both the Apex Court and the Government. One such question pertains to ‘same-sex marriages. India does not recognize same-sex marriages. None of the marital laws expressly recognize same-sex marriages. Recently, a Public Interest Litigation (“PIL”) was filed in the High Court of Delhi seeking declaration to the marriage rights of the gay community under the Hindu Marriage Act, 1955 (“the Act”). The petitioner avers that the Act allows marriages between “two Hindus” without discrimination between heterosexual and homosexual couples. Under Section 5 of the Act, it is nowhere mentioned, laying conditions of a valid Hindu marriage, that a marriage must be solemnized between ‘only’ a man and a woman. However, still, gay couples cannot get married and register the same under the Act.
Even the Human Rights Charter [Article 16] recognizes the ‘right to marry’ as a universal right. Seeking this right to extend to homosexual couples as well is neither too complicated nor unjust. Not allowing the LGBTQ+ community as per their own choice is just like saying ‘you are different and there is no one to marry you in this country; forget about the person you love’.
- It violates the right to liberty guaranteed under Art. 21 of Indian Constitution
It covers private consensual sexual relations. The fundamental right to liberty (under Article-21) prohibits the state from interfering with the private personal activities of the individual. In the case National Coalition for Gay and Lesbian equality V. Ministry of Justice, the South African court held that Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy, allowing us to establish and nurture human relationships without interference from the outside community. Even at the international level, the Right to Privacy has been recognized in favour of lesbians and gay men.
- The criminalization of homosexual conduct is unreasonable and arbitrary
Infringement of the right to equal protection before the law requires determining whether there is a rational and objective basis to the classification introduced. There should be a just and reasonable nexus between the classification, and the object sought to be achieved by the legislation. Section-377 of IPC, its legislative objective is to criminalize all sexual activities against the order of nature, thus punishing the unnatural Sex. Section-377 assumes that the natural sexual Act is that which is performed for procreation. Hence, it thereby labels all forms of non-procreative sexual Act as unnatural. This gives a very narrow view of the distinction between the procreative and non-procreative sexual Act. Hence, the legislative intent of creating a public code of sexual morality has no rational nexus with the classification created. Further, the very object of the section is vague, unreasonable, arbitrary and based upon the stereotyped notion that Sex is only for procreation. Now, if this presumption is accepted is correct then, what justifies the policies of family planning and the use of contraceptive devices.
- Section-377 discriminates based on sexual orientation forbidden under Article-15 of the Constitution.
Article-15 prohibits discrimination on several grounds, which includes Sex. By prohibiting discrimination based on Sex, article-15 establishes no standard behavioural pattern attached to gender. The prohibition on non-procreative sexual acts imposed by section-377 prescribes traditional sexual relations upon men and women. Making the provision discriminates against homosexuals based on their sexuality and therefore constitutes discrimination based on sexual orientation.
- Section-377 violates the enjoyment of civil laws and gay men and lesbians and leads to other adverse effects.
Section-292 of IPC punishes Obscenity; the current definition of Obscenity can incriminate gay and lesbian writings. As male homosexuality is a criminal offence, the presumption is that it is something depraved and can corrupt the minds and bodies of the persons. In the prevailing atmosphere, and writing about lesbians and gay men can be criminalized, as homosexuality is treated as something immoral or depraved. The workman’s Compensation Act, 1923- provides that in case of death caused by injury at the workplace, the dependents of the employee are entitled to receive the compensation from the employer; the dependents will include a widow, minor legitimate son, unmarried daughter, widowed mother and an infirm son or daughter.
Thus a gay or a lesbian couple cannot claim the benefits under this section. This is not an isolated example, and other such Acts are discriminatory towards homosexuals. The Provident Fund Scheme, 1952, and the Payment of Gratuity Act, 1972 define family so that a lesbian or gay couple. I end this issue with a quote? There are several sections in the Indian Penal Code that are anachronistic in a changing world. Section 377 is a prime example. Section 377 would have made what Clinton did to Monica Lewinsky, or Monica Lewinsky provided Clinton with an offence. I am discreet because some things can only be dealt with orally and cannot be put down on paper! The critical words are “against the order of nature.” The possibilities are immense, and the imagination can well run riot. Perhaps the way out is now to argue that nature and its various orders have them changed.