SAME-SEX MARRIAGE AND LGBTQ+ RIGHTS: CONSTITUTIONAL AND HUMAN RIGHTS ISSUES
THE LAWWAY WITH LAWYERS JOURNAL VOLUME:-17 ISSUE NO:- 17 , NOVEMBER 06, 2024 ISSN (ONLINE):- 2584-1106 Website: www.the lawway with lawyers.com Email: thelawwaywithelawyers@gmail.com Authored by:-R. Jemima Christy Rebekah SAME-SEX MARRIAGE AND LGBTQ+ RIGHTS: CONSTITUTIONAL AND HUMAN RIGHTS ISSUES Abstract The constitutional and Human Rights issues encompass the legal recognition of same-sex marriages. In the Indian Constitution, articles 14 and 21 focus on the rights of an individual. These articles ensure “equality before the law” and “right to life and personal liberty.” This is considered as the foundation for supporting LGBTQ rights. The important landmark judgments such as Navtej Singh Johar v. Union of India and Justice K.S. Puttaswamy v. The Union of India, these cases transformed the legal view of the LGBTQ acknowledging individuals by decriminalizing homosexuality and acknowledging the right to privacy as a fundamental right. The decriminalization of the same sex has been a significant success and the lack of legal recognition of same-sex marriages sustains inequality and discrimination against LGBTQ+ couples. The ethics confirmed in the landmark judgments should broaden to include the legal recognition of same-sex marriages by securing equal treatment and protection for all citizens under the law, regardless of sexual position. This research looks to provide relationships between LGBTQ rights and constitutional pledges in India by using thorough examination of constitutional provisions, judicial precedents, and the broader societal implications. Finally, the study pushes the judicial and legislative activity to protect the LGBTQ rights of individuals, and it advocates legal actions which promote equality and humanity for all. Keywords Same-sex marriage LGBTQ+ rights Human Rights Constitutional Provisions Legal recognition Decriminalization of homosexuality Introduction Same-sex marriage and LGBTQ+ rights become the most discussed matter in contemporary constitutional subjects in India, especially after the progressive decriminalization of homosexuality in 2018 which happened through the landmark judgment of Navtej Singh Johar judgment. This judgment acknowledged to protect the fundamental rights of the LGBTQ+ community. Still, the legal recognition of same-sex marriage stays an unacknowledged issue which leaves the LGBTQ+ individual’s rights as a partial recognition under the law. This study explores the constitutional and human rights issues that arise from these legal matters, concentrating on the promises provided under Article 14 and Article 21 of the Indian Constitution. These provisions combined with the judgment of Navtej Singh Johar and Puttaswamy, laid the foundation for a prospective legal structure for same-sex marriages. Constitutional Provisions: Article 14 and 21 Article 14 “Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”1 This promises equality before the law and the equal protection to all the individuals which prohibits the discrimination based on sex and on any grounds. This principle of equality creates a keystone for many lawful actions intended at protecting the rights of underserved communities. Rejecting LGBTQ+ individual’s legal recognition in the case of same- sex marriage stands for a clear violation of the equality protected by Article 14. The constitutional provision assures any law that discriminates against a certain group of community should endure the test of reasonable classification and arbitrariness. The major reason the rejection of the same-sex marriage recognition is commonly embedded in traditional and cultural views on marriage, which explains it strictly as a connection between a man and a woman. Although, these views cannot take a stand in the modern constitutional framework which values the tag of equality for all. Supporting the denial on marriage for LGBTQ+ couples can be creating an unequal concession which parts the favor of heterosexual couples. The equality guaranteed by Article 14 violated by this difference, without any reasonable justification. 1 Constitution Article, Article 14 in constitution of India, Indian kanoon (https://indiankanoon.org/doc/367586/) Article 21 “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.”2 The Indian Judiciary system has adopted article 21’s right to life and personal liberty widely to include the right to live with dignity, self-determination and privacy. The Puttaswamy judgment, which recognized privacy as a fundamental right that includes the freedom to make confidential decisions about one’s sexual orientation, was significant in expanding the boundaries of Article 21. The recognition of the right to privacy in Puttaswamy case gave a solid base for claiming that the state’s refusal to recognize same-sex marriages violates on individual’s personal liberty and dignity. Under Article 21, protection of dignity and self-determination is violated by the state’s involvement in the rejection of LGBTQ+ community their right to marriage even though marriage is a very personal and private decision. Landmark Judgments Navtej Singh Johar v. Union of India (2018) Petitioner: Navtej Singh Johar Respondent: Union of India FACTS: A writ petition was filed on 26th April 2016 by Navtej Singh Johar to challenge the constitutional legality of Section 377 of Indian Penal Code (IPC) which makes it illegal sexual intercourse between same-sex adults in private. The petitioner requested in their appeal that the “right to sexuality,” “right to sexual autonomy” and “right to choose a sexual partner,” declared as an element of the right to life protected by Article 21 of the Indian Constitution. The petitioner also requested that section 377 of the Indian Penal Code declared illegal. 2 Constitution Article, article 21 in constitution of India, Indian Kanoon (https://indiankanoon.org/doc/1199182/) HISTORY: The Delhi High Court first considered portions of section 377 unconstitutional in Naz Foundation v. Government of NCT of Delhi. Because of various individuals and religious groups challenged the judgment, the Supreme Court of India overruled the judgment of Delhi High Court in 2013 in Suresh Kumar Koushal v. Naz Foundation, said that the matter and the final decision is up to the parliament. The said matter of section 377 was rejected in 2015.3 JUDGMENT: The judgment recognized that the legislation violated against fundamental rights which is protected by the Indian Constitution, including the right to privacy and stressed the importance of individual autonomy, equality, and dignity. In