Is Homosexuality Legal in India?

Posted On : November 8, 2022
Is Homosexuality Legal in India?
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In India, is homosexuality permitted?The answer to this question would be pretty straightforward: "Yes, homosexuality is legal in India."However, getting it wasn't as simple as it sounds.The Lesbian, Gay, Bisexual, Transgender, Queer, and Intersex (LGBTQI) community has waged numerous societal wars to achieve freedom and treatment as equal citizens or human beings from a position of complete lack of rights.Social reform movements centered on LGBTQI rights have achieved nearly equal rights for this persecuted group over time in many jurisdictions, and reformation movements are currently taking place all over the world.The movement has begun to pique people's interest in issues like the right to a family, the decriminalization of homosexuality, and even the right to adopt. Other issues include basic housing rights, access to public employment, and the right to choose one's own sexual identity.With the stereotypes they always have, the religions, customs, and cultures of the majority of civilizations fought reform efforts for LGBTQI people.

History of Homosexuality in India

Let's get started on our discussion of whether homosexuality is legal in India by going over its history.Homosexuality is said to have been accepted in India since ancient times.In fact, homosexuals are regarded with respect in society in mythology as well.According to the legislative history of the issue of homosexuality, the Fleta, written in 1290, and the Britton, written in 1300, are the first records of sodomy (anal sexual behaviour with another person) as a crime in the Common Law of England.

Sodomites should be put to death by fire in both of these scriptures.In 1563, Queen Elizabeth I reenacted the Buggery Act, which laid the groundwork for the eventual criminalization of sodomy in the British Colonies. Later, sodomy was made a capital offense punishable by hanging.Oral genital sex was later dropped from the definition of buggery in 1817.In addition, in 1861, the death penalty for buggery was officially abolished in England and Wales.It was held that sexual activity could only be performed with the intention of conceiving a child, and anything else would be considered illegal.

The Indian Penal Code (IPC), drafted by Lord Macaulay in India, was first implemented in British India in 1861.Section 377 of the IPC is incorporated into Chapter XVI of the IPC, which is titled "Of Offences Affecting the Human Body."This chapter contains Section 377 of the IPC under the heading "Of Unnatural Offenses."The British penalized homosexuality in India in this manner.

It's important that Ruler Macaulay's draft of Area 377 contrasted altogether from the last adaptation of Segment 377.In contrast to his decision to punish the same offense when consented to, which would result in a maximum sentence of fourteen years in prison (but not less than two years), Lord Macaulay's decision to punish touching another person for the purpose of satisfying "unnatural lust" without their "free and intelligent consent" is notable due to the time period in which he lived.Lord Macaulay was aware that "unnatural lust" might be punished with a lighter penalty if it was done with consent even during the most conservative period in English history.

It is shocking that only a few changes have been made to the Indian Penal Code, which has been in place for more than 150 years.The 42nd Law Commission Report (1971) did not recommend amending or repealing Section 377 at any point in this nation's history.However, B.P. Jeevan Reddy, J.'s Law Commission Report of the Year 2000 (the 172nd Report) suggested that anal intercourse between consenting adults, whether same-sex or not, would not be punished due to changes made to the preceding sections.However, the rights of homosexuals in India have greatly improved as a result of our Indian judiciary's policy of transformative constitutionalism.Now, let's talk more about them in the article.

What is Section 377 of the Indian Penal Code?

As noted above, Chapter XVI of the IPC, “Of Offences Affecting the Human Body,” incorporates Section 377 of the IPC. Section 377 reads as follows:

Unnatural offences—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.

Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Development Through Judicial Pronouncements

Naz Foundation v. Government of NCT of Delhi (2009)

As it addressed a number of issues pertaining to the existence of Section 377 of the IPC in today's time, the Delhi High Court's decision in Naz Foundation v. Government of NCT of Delhi (2009) is one of the most influential decisions made by the bench of Chief Justice Ajit Prakash Shah and Justice S. Muralidhar.In addition to determining whether the challenged provision is constitutionally valid, the court examined its compliance with Articles 14, 15, 19, and 21 of the Indian Constitution.

The Court made the observation that the Constitution must be interpreted in a dynamic and progressive manner in order to fulfill the purpose of its rights.The constitutional commitment to provide all constitutional rights to all people, including LGBT people, must take precedence in this interpretation.

Since Section 377 directly violates the individual's right to dignity and privacy, the Court also ruled that the individual's sexual preferences are protected by the core of Article 21.The tests outlined by the Supreme Court in State of West Bengal v. Anwar Ali Sarkar (1952) were used by the Court to determine whether Article 14 had been violated.The Court stated in its decision that the contested statute created an irrational distinction and that there was no necessary connection between criminalizing adult sexual relationships with consent and preventing child sexual abuse or improving public health.

After that, the Court expanded its definition of the term "intercourse" in Article 15 to include not only "sexual orientation," but also a much wider circumference.Based solely on this viewpoint, the Court went on to conclude that Section 377 violates Article 15 because it appears to discriminate against sexual minorities.Because the disputed statute also violated Articles 21 and 14, the Court deemed it unnecessary to consider whether Article 19 was violated.

The Court also expressed concerns regarding the early days of Section 377 due to the stigmatizing effects of tying the hijra identity to criminal activity.After citing evidence that a person was assaulted and harassed under Section 377, the Court discussed the Criminal Tribes Act of 1871's criminalization of identity just because they belonged to a particular community.Even though the Court didn't invalidate Section 377 in its entirety, it was quickly ruled illegal because it made it illegal for adults to have consensual sexual acts in private.In its decision, the Court said that the decision could stand until Parliament decides to change the law.

Suresh Kumar Koushal v. Naz Foundation (2013)

In an appeal against the Delhi High Court's decision in Naz Foundation v. GOI, this case was heard by the Supreme Court of India.In this case, the Supreme Court unexpectedly overturned the Delhi High Court's decision.

The petitioners argued that because Section 377 does not appear to refer to or classify any particular gender or group, it does not violate Articles 14, 15, or 21.The Court agreed with their arguments and decided that carnal intercourse, as the petitioners intended and defined it, should be punished and that Section 377 does not violate Articles 14, 15, or 21.

Justice Singhvi asserts that Statute 377 is pre-constitutional legislation, and if it had violated any of Part III's rights, Parliament would have long ago removed this section.He declared the clause constitutionally valid based on this justification.Because no part of the Section can be severed without affecting the Section as a whole, and because that Section also happens to be the only law that governs cases of paedophilia and tyke sexual abuse and assault, the Delhi High Court's decision to read down the Section in the aforementioned case was incorrect.He also said that the presumption of constitutionality was the source of the severability doctrine and the practice of reading down a particular section.As a result, the Supreme Court decided that Section 377 of the Indian Penal Code does not violate the Constitution and that it is up to the appropriate legislative body to decide whether it would be desirable and legal to amend the section to allow private consensual sexual activity between adults of the same sex or to remove it from the statute book.

National Legal Services Authority v. Union of India (2014)

In this landmark case, the Supreme Court recognized the "third gender" legally in 2014.The Court made the observation that "Hijras" and "Eunuchs" should be considered "third gender" instead of "binary gender" in order to safeguard the rights granted by Part III of our Constitution and the laws enacted by Parliament and the state legislature.The Supreme Court asked the central and state governments to recognize transgender people's gender identities, regardless of whether they identify as male, female, or as a third gender. The right of transgender people to choose their own gender is also respected.

The Supreme Court instructed the central and state governments to treat them as socially and educationally disadvantaged classes of citizens and to take into account all forms of racial and ethnic discrimination when considering their applications for public sector positions and educational institutions.In addition, the Court made the observation that the difficulties that Hijras/Transgender people face, such as fear, embarrassment, gender dysphoria, societal pressure, depression, suicidal ideation, and social stigma, ought to be taken seriously by the governments of the central and state governments.

K.S. Puttaswamy v. Union of India & Ors. (2017)

In the case of K.S. Puttaswamy v. Union of India & Ors.In 2017), a nine-judge Supreme Court bench came to the conclusion that the Indian Constitution's foundational pillars are individual dignity, human equality, and the pursuit of liberty.Further, the Supreme Court stated that dignity is a preamble-enshrined constitutional ideal.The Indian Constitution safeguards the right to dignity in its various forms, including the right to privacy, autonomy, and self-determination.The Court also stated that an individual's dignity is influenced by their family, marriage, procreation, and sexual orientation.

According to J. Chandrachud, who was speaking on behalf of the majority in Justice K.S. Puttaswamy v. Union of India, we also need to emphasize that the assertion that privacy is a luxury for a select few is unfounded.He emphasized that everyone in society has the right to privacy, which preserves intimacy and autonomy, regardless of social class or economic status.A person can resist a program that forces them to sterilise themselves because privacy is a fundamental aspect of life and human liberty.However, if the state were to mandate drug trials on people who didn't give their consent, privacy would be a strong guarantee.All people, regardless of social class or economic standing, are affected by issues such as the sanctity of marriage, the freedom to have children, the choice of family life, and one's dignity.Self-determination and dignity underlie the pursuit of happiness.Both are essential aspects of privacy that do not differentiate between birthmarks.

Family life is covered by Article 21's guarantee of the right to privacy.In this Hon'ble Supreme Court decision, the decision to marry someone is part of the foundation of the family and thus falls under the right to privacy in family matters. In the United States, the right to marry queer or non-heterosexual people is recognized by law.

Even though it did not explicitly legalize homosexuality in India, this case is significant because it was the first decision to declare that sexual orientation is protected by the Indian Constitution as a part of the right to privacy.

Navtej Singh Johar v. Union of India (2018)

In the case of Navtej Singh Johar v. Union of India, which was decided on September 6, 2018, the Supreme Court of India made consensual sexual intercourse between people of the same sex legal, making it a significant day for India.Let's briefly discuss the decision in this case:

Case details As previously mentioned, the Supreme Court's decision in Suresh Kaushal overturned the Delhi High Court's decision in Naz Foundation.Numerous curative petitions contested the Supreme Court's decision.Five members of the LGBTQ community, including a well-known Bharatnatyam dancer named Navtej Singh Johar, filed curative petitions against Suresh Koushal while the petitions were still pending.Ayesha Kapur and Ritu Dalmia, restaurateurs;Aman Nath, a hotelier;Sunil Mehra, a media personality, filed a new writ petition urging the IPC to repeal Section 377, which criminalized consensual sex.

On January 5, 2018, the Supreme Court established a Constitution Bench to hear the entire challenge against Section 377, despite the fact that the curative petitions were still pending.This could be due to the findings of the nine-judge Puttuswamy case decision, which suggested that Suresh Koushal's reasoning and judgment were fundamentally flawed.Beginning on July 10, 2018, this case was heard by a five-judge panel that included Chief Justice Dipak Misra, Justices A.M. Khanwilkar, D.Y. Chandrachud, R.F. Nariman, and Indu Malhotra.

Important Questions

  1. Does Section 377 of the Indian Penal Code infringe on the fundamental right to expression by making it illegal for members of the LGBTQI+ community to express their sexual orientation?
  2. In its own decision in the Suresh Kaushal case, did the Supreme Court's reasoning hold up?
  3. Whether Section 377, which allows discrimination against LGBTQI people based on their "sexual orientation" and "gender identity," violates Articles 14 and 15.
  4. Whether Segment 377 abuses the right to independence and pride of LGBTQI individuals gave under Article 21 by punishing confidential consensual demonstrations between same-sex people?

The Supreme Court made important observations about the transformative power of the Constitution and constitutional morality. It said that people have the right to love anyone they want.It is a desire for everyone to realize their constitutional, humane, and equal citizenship, as well as their just, caring, and human existence.The Supreme Court ruled that Section 377's effects extend far beyond the incorporation of gays into the LGBT community or anyone else in a similar situation as fully equal citizens when considering the question of its constitutionality.Interactions between communities and castes, which society tries to prevent, are also included.The protection of LGBT people's rights and the rights of anyone else in a similar situation speaks to the kind of nation we want to live in and what that means for the majority, in addition to giving a minority group their rightful place in the constitution.

Section 377 of the IPC is based on moral principles that contradict a constitutional system in which liberty must prevail over prejudice and cultural mainstreaming.Our Constitution was drafted with the intention of fostering an inclusive society that accepts a variety of lifestyles. Above all else, it is a reflection of diversity acceptance.Intimate behavior that the social order considers unpleasant as well as non-procreative sex is included in the order of nature that is referred to in Section 377.The fact that each of them is challenging established societal hierarchies while exercising their right to love at great personal risk is what ties LGBT people together with couples that value one another regardless of caste or community.The fight for the right to love becomes a fight for everyone, not just LGBT people, because the constraints imposed by systems like gender, caste, class, religion, and community are seen as part of the natural order rather than just the prohibition of non-procreative sex.

In addition, the Court ruled that Section 377's effects extend far beyond the decriminalization of certain colonial-era behaviors;They also have an impact on people's identities, existence, and their right to full citizenship.

Rights to sexual identity, sexual orientation, freedom, sexual autonomy, sexual privacy, sexual expression, choice of partner/sexual partner, and sexual health are recognized as fundamental rights under Articles 14, 15, 19, and 21 of the Indian Constitution.According to the Court's decision, comprehending the transition from reproductive/procreative instinct to erotic desire and emotional intimacy is necessary for comprehending contemporary concepts of sexuality and sexual identity.This is because the distinctions between homosexuality and heterosexuality are difficult to make sense of, which may even be a relic of a previous myth or fabrication in light of how fluid sexual identities are today.

The Court asserts that homosexuality does not constitute a mental illness or disorder.It is a common and accepted form of sexuality among people.

The element of consent is where Section 375 and Section 377 of the Indian Penal Code, 1860 differ the most.While Section 375 recognizes that a heterosexual act qualifies as rape in the absence of deliberate and informed consent, Section 377 criminalizes all sex between adults, heterosexual or gay, regardless of consent.Consensual carnal relationships between adults who identify as LGBT are against the law under Section 377, whereas consensual heterosexual relationships between adults are not.

The Court noted that Section 377 treats all forms of non-procreative sexual behavior as unnatural and declares them illegal without considering consent or harm.It differentiates homosexuals from heterosexuals.It is disheartening to see that despite the fact that the LGBT people group likewise has a similar human, major, and established freedoms as others, it is dealt with unjustifiably and as an alternate class of people.The classification chosen by Section 377 has no rational connection to the objective it aims to achieve, which is why it is inconsistent with other penal statutes like Section 375 of the Indian Penal Code and the Protection of Children Against Sexual Offences (POCSO) Act of 2012.

Decision of the Supreme Court of India In this decision, the Supreme Court of India ruled that Section 377 of the Indian Penal Code (IPC) is unconstitutional because it criminalizes adults' consensual sexual acts, regardless of whether they are heterosexual, homosexual, or a member of the lesbian, gay, bisexual, or transgender (LGBT) community.The Indian Constitution's Articles 21, 14, 15, and 19 were found to have been violated by the Section.The LGBT community and others in similar circumstances are entitled, according to the Court, to the same human, constitutional, and fundamental rights as everyone else.The Court, on the other hand, decided that any act listed in Section 377 that takes place between two people without the consent of one of them, as well as any kind of sexual interaction with an animal, would be illegal.Lastly, it was decided that the Supreme Court bench decision in Suresh Kumar Koushal (2014) that was made by two judges is wrong.

Development Post Decriminalisation of Homosexuality

The Transgender Persons (Protection of Rights) Act, 2019

The Transgender Persons (Protection of Rights) Act, 2019 was enacted by Parliament in 2019 as a result of the two landmark rulings, the NALSA judgment (2014) and the Navtej Singh Johar judgment (2018).This is the primary regulation laid out by the Parliament to safeguard transsexual individuals' freedoms and dispense with a wide range of oppression them in the country.Let us review a few important provisions of this Act:

Transsexual Definition

Segment 2(k) of the Demonstration perceives a transsexual individual as somebody whose orientation doesn't compare to the orientation relegated upon entering the world.It includes people who identify as genderqueer, transgender, intersex, and with socio-cultural identities such as kinnar and hijra.

Discrimination: All individuals and businesses are prohibited from discriminating against a transgender person on the following grounds under Section 3 of the Act:

  • Discrimination in educational establishments.
  • Discrimination in the workplace.
  • In healthcare services, discrimination.
  • Discrimination in the way goods, services, and facilities are accessed and used.that are accessible to the general public.
  • The inability to move about
  • Denial of the right to live, rent, or occupy any property in any other way.
  • Denying public or private officers the same opportunity to hold office.
  • The refusal to allow a transgender person into a public or private facility where they may be in charge or custody.

The Act imposes certain obligations on the government to ensure that appropriate welfare measures are taken.It says that the right government will do something to make sure transgender people can fully participate in society.In addition, it must provide transgender individuals with self-employment and vocational training, rescue and rehabilitate them, and encourage their participation in cultural events.

The National Council for Transgender People (NCT) is required to be established by notification from the Central Government, as stipulated in Section 16 of the Act.On the other hand, Section 17 outlines the Council's responsibilities.The Council's role is to advise the federal government and monitor the progress of transgender-related projects, regulations, and laws.It will also have to address complaints from transgender individuals.

Infractions and consequences Section 18 of the Act imposes a six-month prison sentence that can be extended to two years or a fine.The Act acknowledges the following offenses:

  • Any form of shackled or forced labor.
  • Anything that prevents a transgender person from using a public space.
  • Removing a transgender person by force from their home or village.
  • Any kind of harm done to transgender people—physical, mental, or emotional.

Arun Kumar and Sreeja vs. The Inspector General of Registration, Chennai (2019)

In the case of Arunkumar v. Inspector General of Registration (2019), it was decided that transgender people have the right to marry under Article 21 of the Indian Constitution and that women who identify as transgender are included in the definition of a "bride" under the Hindu Marriage Act of 1955.According to the decision made by the Madurai Bench of the High Court of Madras, a marriage between a man and a transwoman who practiced Hinduism was legal under the Hindu Marriage Act of 1955.Ms. Sreeja's right to self-identify as a woman was upheld by the court, as were the rights of other women who identify as intersex or transgender to be included in the term "bride."It was found that the state had violated her fundamental rights by not registering her marriage.

Ms. S. Sushma & Anr. vs. Commissioner of Police, Greater Chennai Police 2021

The Madras High Court's landmark decision in this 2021 case demonstrates the positive impact of the Navtej verdict.This is the first case of its kind in which the judge himself went to counseling to learn more about relationships between people of the same sex.In order for the judgment to come from his heart rather than his head, the judge stated that he needs to be completely "woke" regarding this aspect.In this judgment, the Court established a number of guidelines to ensure that the Navtej judgment is properly implemented.

The Madras High Court has directed the Union and state governments to prevent medical professionals from attempting to "cure" or alter LGBTQIA+ people's sexual orientation.In addition, the Court has mandated that appropriate measures be taken against anyone involved in conversion "treatment" in any way, including the professional's license to practice being revoked.

If a girl, a woman, or a man files a complaint with the police, and further investigation reveals that the person filing the complaint is a consenting adult from the LGBTQI community, the police must immediately close the complaint without harassing the person in any way.

The court ordered the Ministry of Social Justice and Empowerment to put up on its website a comprehensive list of non-governmental organizations working on LGBTQI issues.

Additionally, these NGOs on the list are required to submit aggregate annual reports to the Ministry and to maintain confidentiality.

With the assistance of DLSA or any other support, the LGBTQI community's issues must be addressed by providing financial assistance, counseling, or legal assistance.For both crimes committed against members of the LGBQTIA+ community and issues faced by community members, the assistance of law enforcement agencies is available.

To deal with the issue of accommodation, appropriate arrangements must be made.The Court said that the only things the stay homes, Anganwadi shelters, and Garima Greh could provide were shelter, food, medical care, and recreational opportunities;However, in addition to supporting the LGBQTIA+ community's capacity building and skill development, the Court made the following order:

In addition, any additional initiatives or policies that are required to eradicate prejudice against LGBQTIA+ individuals must be implemented, and they must be developed with the assistance of additional ministries and departments as well as the governments of the Union and the states.

The Hon'ble Court suggested a number of awareness campaigns for various groups, such as the court, DLSA and SLSA, parents of LGBQTIA+ community members, experts in physical and mental health, educational institutions, and healthcare workers.

It is essential to keep in mind that this is only a suggestion; consequently, the list is only illustrative and does not include everything.

Queerala & Anr. v. State of Kerala & Ors (2021)

The Kerala High Court recently ordered the state government to create regulations to prevent State-licensed medical professionals from allegedly forcing LGBTQI+ patients into receiving conversion therapy.The court ordered the state government to look into the situation and, if necessary, set up an expert committee to look into it.In view of this study report, the State had five months to draft rules and submit them to the Court.

A recognized LGBTQI community organization and a transman who claimed to have been the victim of coerced conversion therapy filed a petition in Kerala. The decision was made in response to the petition.

Numerous high courts granted non-heterosexual relationships and marriage partners habeas corpus protection following the Navtej Singh Johar decision.

National Medical Commission Ban on Conversion Therapy

Another layer of prejudice against the LGBTQIA+ population will be eliminated when the National Medical Commission (NMC) declares conversion therapy to be “professional misconduct” on August 25, 2022, and gives State Medical Councils the authority to take disciplinary action if the guideline is broken.People of any orientation or members of the LGBTQI community frequently have to undergo conversion or "reparative" therapy to change their sexual orientation or gender identity, especially when they are young.Exorcism, electroshock therapy, psychosomatic drug use, and psychiatric care are all forms of therapy.Drug addiction, depression, anxiety, and even suicide are all possible outcomes of this trauma.

According to the Indian Medical Council (Professional Conduct, Etiquette, and Ethics) Regulations, 2002, the Madras High Court mandated that the National Medical Council (NMC) publish an official notification labeling conversion therapy as unethical.The NMC's notice is also a modest step in the direction of decriminalizing homosexuality, if the Supreme Court's 2018 repeal of Section 377 of the Indian Penal Code was the first step.However, there is still a great deal of work to be done if we want the LGBTQAI+ community to feel safe.

Taking a cue from nations like Canada, which has outlawed conversion therapy, there ought to be clarity regarding the actions that would be taken against doctors, psychiatrists, and quacks who are accused of providing reparative treatment as well as the penalties that they will face.The foundation must be laid by education.In addition to legislation that is better suited to the needs of a diverse community than the Transgender Persons (Protection of Rights) Act, 2019, social change must occur.

Karnataka Government’s Decision on Reservation for Transgenders

The Karnataka government has decided that 1% of the vacancies in any services or posts that the state government needs to fill will be filled by transgender applicants in each General Merit, SC, ST, and OBC category.

In a memo to the Karnataka High Court, the Karnataka government stated that the State of Karnataka has initiated changes to the Karnataka Civil Services (General Recruitment) Regulations, 1977.

During the hearing of a petition from Sangama, an organization that works to advance sexual minorities, sex workers, and HIV-positive individuals, the government presented the memo.

Citing the Supreme Court's decision in the case of NALSA v. Union of India (2014), the petitioners argued that the state only lists "Men" and "Women" as the genders that can apply for the openings in its appointment circular, which calls for filling the vacancies.The age, weight and different information are just accommodated 'People' independently in the challenged notice, with complete dismissal for the 'Third Orientation.'

Is same-sex marriage allowed in India?

As previously mentioned, there has been significant progress made in India regarding LGBTQI rights.Consequently, a series of petitions challenging the non-inclusion of marriage rights for LGBTQ+ couples in various statutes, ranging from the Hindu Marriage Act of 1955 to the Foreign Marriage Act of 1969, have been submitted in various High Courts of the nation in an honest attempt to induce legislative reform.

Because it only allows marriages between people of the same sex, the Special Marriage Act of 1954 and its regulations are found to be discriminatory.The Act's terminology in Section 4 and Schedules 2–4 has a heterosexual undertone because they depict marriage as a practice between a man and a woman or between a bride and a groom, despite the fact that the Act's text does not specifically forbid homosexual partnerships.This is especially true due to the Schedule Nos. Forms mentioned in the plain Act.The Act's sections 2 through 4 use heterosexual language to describe the "Notice of Intention to Marry," the declarations that must be made by the parties to the marriage, and the marriage certificate.According to the law, a homosexual cannot apply for marriage solemnization or registration.

People who are married have special rights and privileges in society because of the institution of marriage. Gay couples do not have the same rights and privileges because of the aforementioned exclusion.Maintenance, inheritance, joint bank accounts, lockers, and the ability to name one another as a nominee in insurance, pension, and gratuity documents are all benefits of marriage.All of these are out of reach for members of the LGBTQ community because they are not married, making the exclusion even more discriminatory.

The right to marry a person of one's choice, as guaranteed to an individual in the cases of Common Cause v. Union of India (2018), Shafin Jahan v. Ashokan K.M. (2018), and Shakti Vahini v. Union of India (2018), is violated by the non-recognition of same-sex marriages.

Non-acknowledgment of same-sex relationships disregards the equivalent sex couples' on the whole correct to pride as LGBT individuals and as an equivalent sex couple as ensured in the Puttuswamy and Navtej Singh Johar decisions.

According to Madhubala v. State of Uttarakhand (2020) and Soni Gerry v. Gerry Douglas, a violation of the right to life, which includes the right to companionship and sexual intimacy for homosexuals, is the non-recognition of same-sex marriages.

It is against Article 21's guarantee of integral rights to deny recognition of same-sex marriages.

According to the ruling in Joseph Shine v. Union of India (2019), the institution of marriage is violated when same-sex marriages are not recognized.

According to Vikas Yadav v. State of UP (2016) and Asha Ranjan v. the State of Bihar (2017), denying couples the institution of marriage and refusing to recognize and acknowledge homosexual marital unions are both criminal and constitutional violations of their right to freedom of expression protected by Article 19(1)(a) of the Indian Constitution.

According to Article 19(1)(c) of the Constitution, the challenged laws violate the fundamental rights of same-sex couples by excluding them from the protection and recognition afforded to marital relationships by the law.

Violation of the Constitution's Articles 14 and 15

Shayara Bano v. Union of India (2017) establishes that a law that is clearly arbitrary violates Article 14 of the Indian Constitution.

When non-heterosexuals are denied the right to marry, this constitutes discrimination in accordance with Article 15(1).Gender or sex discrimination as well as discrimination based on sexual orientation are examples of discrimination against nonheterosexuals.

Treating married couples of the same sex and married couples of the opposite sex on the basis of their sexual orientation is a violation of Article 14 of the Indian Constitution and amounts to treating equals as unequals.

Article 15(2) rights are violated when queer people are denied entry to businesses and public areas without formal recognition of their marriage.When it comes to privately accessed necessities and activities like insurance, hospitalization, and hotel booking, they do not have the same rights as a married partner.

Failure of Indian marriage laws to recognize same-sex marriages violates the freedom of conscience of same-sex spouses. This is a violation of Article 25 of the Constitution.Freedom of conscience is recognized as a fundamental right under Article 25 of the Indian Constitution that transcends religious considerations.

Violation of the Directive Principles of State Policy Part IV of the Constitution obligates the state to adhere to certain governance principles. Many of these principles, when interpreted in the context of ensuring LGBTQI people's equality and welfare, obligate the government to end discrimination against them.According to Article 38(2) of the Constitution, the state has a positive obligation to eliminate disparities in citizens' status, resources, and opportunities.Article 44 encourages the government to develop a uniform civil code for all citizens, while Article 39(a) requires the government to treat all citizens equally.

When the justiciable rights under Part III of the Constitution are contrasted with the state's mandated responsibilities under Part IV of the Constitution, it becomes abundantly clear that the state has a positive duty to safeguard homosexuals and other sexual minorities from all forms of discrimination based on their sexual orientation or gender.


Despite the Supreme Court's 2018 decision decriminalizing homosexuality, gay and transgender people still lack access to other civil rights and liberties like marriage, adoption, and insurance.Typically, the path ahead is the path.However, more than four years after homosexuality was decriminalized, India's government has pursued dismissals of petitions seeking recognition of same-sex marriages under existing laws as a standstill, if not attempt to go backwards.Times are changing, and public profound quality is changing too.The definition of marriage should no longer be limited to a man-woman relationship;Instead, it ought to be thought of as the civil status, state, or relationship of two people who are legally married for life.It is past due to acknowledge that same-sex couples have the same constitutional right to marry and enjoy all marriage-related rights as other couples.

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