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Same Sex Marriage in India

SAME SEX MARRIAGEMarriage is considered as the purest bond. It is the legally recognized union of two people as life partners and personal relationship. When we say “two people”, it usually means a male and a female but with the changing times we see that it is not always a male and a female by which I mean it can be two males or two females.Now, this can be considered normal in other countries but in country like India, gay marriage is still unacceptable.In this blog, I shall discuss about the same sex marriage, its possibilities and rights of LGBT (lesbian, gay, bisexual and transgender) couples.PROBLEMS OF LGBT Homosexuality was considered a taboo in Indian Society. The Section 377 of Indian Penal Code states that sex or marriage between the same genders is punishable by law. It was on September 6, 2018, the supreme court of India legalised Section 377, thereby making gay sex legal.It was a long fight and struggle for LGBT people to get their rights and respect in a society. Earlier, they were not even considered as normal people and were discriminated in every aspect. On July 2, 2009, the Delhi Constitution held the provision to be unconstitutional in Naz Foundation vs. Govt. of NCT of Delhi. ON 11 December, 2019, the Supreme Court of India overturned the ruling. Many foundations such as Naz Foundation, The National Aids Control Organisation, National Human Rights Commission of India, Union Health Ministry and etc. have stood for homosexuality and fought for decriminalizing it in India. After all these movement we see the mentality of people slightly shifting and the gay couples can now live their life with dignity.CHALLENGES FACED BY SAME SEX COUPLESSame sex marriages are still considered punishable in many parts of the world. In India, same sex marriage was a criminal offence till 2009 under Section 377 of IPC which thereby made it an offence for people of same sex have carnal intercourse against the order of nature. In a research it was seen that the law was used to harass sex workers, HIV/AIDS prevention activists and other LGBT groups. As per the document reports 4 men were arrested in 2001 and another four in year 2006. Not only this, homosexuals also have to face a bitter world outside as the imagination of two people of same caste marrying draws a picture of hatred and disgust. Marriage in India has a ritual of dowry which is too a criminal offence but is encouraged in many Indian societies. Now if we talk about same sex marriage, then the question arises that who is entitled to dowry and thus same sex marriage discourages dowry. Not ignoring the face that same sex marriage is considered unnatural. Living a life of dignity and getting respect was one of the biggest challenge for same sex couples especially in a country like India which believed that homosexual marriage will destroy the concept of a traditional family marriage.HOMOSEXUALILTY AND RELIGIOUS BELIEVESHinduismIf we see history then we will find enough existence of homosexuality in ancient history of India. Rig-Veda which existed back in 1500 BC and ancient sculptures found in temples at Khajuraho, the character of “Sikhandi” in Mahabharata depicts homosexuality clearly. With the advent of British Colonialism and Vedic Brahmanism, homosexuality lost its existence. The Manusmriti provides punishment for females engaged in sexual activity with another female. Later with the destruction of images on the buildings in British period the sexual expressions became more systematic.MuslimIslamic law is derived from both Quran and Muhammad Sunnah. Under Islam, homosexuality is just not considered a sin, but a punishable crime against God. Muhammad said anyone engaged in such activity should be killed and also that they should be thrown out of houses. His followers adopted the same thoughts and thus, even now homosexuality is unacceptable.ChristianityAcceptance of homosexuality is still considered as a dilemma in Christianity. There is two group of which one condemns the idea as a whole, whereas other group believes that the concept of homosexuality should be accepted. The modern Western nations have legalised homosexuality. However, some people still condemn homosexuality in Christianity.HOMOSEXUALITY SHOULD BE LEGALISEDThere are many reasons which stands in favour of homosexuality. Stated below are some of the reasons:-·      Violation of Article 21 which stands for Right to Liberty which includes private consensual relationship and thus prohibits the state from interfering with the private activities of the Individual . In the case National Coalition for Gay and Lesbian Equality Vs. Ministry of Justice, the South African court declared that everyone has a right to private intimacy and thus give rights for a nurture human relationship without any hindrances. This clearly states that right to privacy has been accepted in favour of lesbians and gays.·      Criminalization of homosexual conduct is meaningless and arbitrary. Everyone has a right to equality. Section 377 of Indian Penal Code criminalizes all the sexual activities which is unnatural and against the nature of law and thus punishes unnatural sex. Natural sex is one which is performed for procreation and so the non-procreative sex is considered a crime. The legislative intent of creating a public code of sexual ethics has no rational link with the classification created and so is totally unreasonable, vague, is discriminated and is based on the stereotype opinion that sex is only for procreation.·      Article 15 forbids discrimination on the basis of sexual basis which includes sex. Section 377 discriminates on the basis of sexual orientation to which Article 15 says that there is no behavioural pattern attached to the gender. Thus, Section 377 discriminates against the homosexuals.·      Section-377 assaults the enjoyment of civil laws and homosexual. Section 292 of Indian Penal Code penalizes obscenity and so any writings about the homosexuals can be criminalized as it is treated as immortal.CONCLUSIONLove comes in all forms and it would be unjustified to say that a person cannot love someone just because of their gender. The world is developing and so should be the mentality of people. No social forms can be used to restrict people from asserting their fundamental rights. Everyone has a right to equality and every individual deserves to live a life of dignity. Same sex marriage is found to be more of a religious debate than political one. There is nothing wrong in homosexuality, rather it is just a mentality. A person has all the rights to lead his or her life the way then want despite of their sexuality. Thus legalising same sex marriage is a way to move forward in the direction of human rights.

Posted By

Neha Roy

3 days ago

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Video Conference: better administration of Justice...

Introduction:- “A video conference is a live, visual connection between two or more people residing in separate locations for the purpose of communication. At its simplest, video conferencing provides transmission of static images and text between two locations. At its most sophisticated, it provides transmission of full-motion video images and high-quality audio between multiple locations.”1 Video conference is a tool by which distance can be erased. It is a strong communication tool. Video conference has become very popular. It saves time and money. We can see in the news channel that if any minister or any government official may it centre or state if failed to participate in any meeting called on by concerned government by video conferencing can attain the meeting virtually. President or Prime Minister of India if on the tour of any foreign Country for accepting their invitation but have to attain either for granting permission or for taking any important decision then video conference solve the matter immediately. The most positive thing of video conference is there are no time bound for video conference; anytime, any day, anywhere with the help of communication technology. Judiciary also adopt this invention of science for speedy disposal of cases and for providing efficient, transparent, time bound, citizen centric service. Video conference and its impact on judiciary will be discussed in next point.Tools needed in Video Conference:- To establish video conference several tools needed. A screen or monitor and a camera or webcam with a microphone is required. Any form of screen can be used. An ISDN telephone line supplied by BT is used to transmit the pictures and sound electronically between the locations. Connection is made by dialling the telephone number allocated to the relevant location.2 An external microphone can be a personal headset, which can be a cost-effective solution. Omni-directional microphones can better record and transmit dialogue. While technically video conferencing can be done over a dial-up Internet connection, to have a quality connection and low lag between communications, a high-speed connection between all participating sights is a necessity. DSL and cable connections as well as T1 lines are excellent options for video-conferencing connections.3 Role of video conference in judicial proceedings:- High Court of Delhi sets a guidelines on video conferencing. I want to quote from Annexure A of Hon’ble Court’s notification-“Video-conferencing facilities provide Courts in Delhi with the capacity to receive evidence and submissions from witnesses or persons involved in Court proceedings in circumstances where it would be expensive, inconvenient or otherwise not desirable for a person to attend a Court in person. An over-riding factor is that the use of video-conferencing in any particular case must be consistent with furthering the interests of justice and should cause minimal disadvantage to the parties. However, it is for the Court to decide whether evidence should be recorded by video-conferencing. Even with the advancement of technology, there is a delay of milliseconds between video picture seen and sounds being heard. Allowances appropriate to this time gap need to be made to avoid one participant talking over aItogether. Microphones set up at the bench, the bar table and at the witness box are highly sensitive. Persons during a video conferencing should assume from the time the video conference is activated until the same is disconnected that microphones are "live" and as such all remarks are audible to the Court.....                                            Wherever possible, proceedings by way of video conference shall be conducted as Judicial proceedings and the same courtesies and protocols will be observed. All, relevant statutory provisions applicable to judicial proceedings including the provisions of the Information Technology Act, 2000 and the Indian Evidence Act, 1872 shall apply to the recording of evidence by video conference. Video conferencing facilities can be used in all matters including remands, bail applications and in civil and criminal trials where a witness is located intrastate, interstate, or overseas. However, these guidelines will not apply to proceedings under section 164 of Cr. P.C. 1.5 The guidelines applicable to a Court will mutatis mutandis apply to a Local Commissioner appointed by the Court to record the evidence. A Court may either suo-moto or on application of a party or a witness, direct by a reasoned order that any person shall appear before it or give evidence or make submissions to the Court through video conference.” By the all tools of video conference Court proceeding carried on as it would be carried without it.Positives of video conference in Judicial Proceedings:- Witness and their testification is very important in a judicial proceedings. Usually court proceedings speed become slower if witnesses failed to testify on the given date by the Hon’ble Judges for that case. Their absence makes a trial lengthy. It is well known that witnesses due to threat or for any consideration could not present in the court for saving his life. That’s why spirit of Justice and its administration hampers, delay occurs. It is also a fact that any interested parties or witnesses if lived in any remote areas then securing their presence in the court hours some time very difficult. Video conference can be the solutions here. In State of Maharashtra vs. Dr. Praful Desai AIR 2003 (4) SCC 601 case it was stated- “....evidence can be both oral and documentary and electronic records can be produced as evidence. This means that evidence, even in criminal matters, can also be by way of electronic records. This would include video- conferencing.”5 “Court also emphasized on the benefits of deposition through video conferencing and said that except for touching, court can see, hear and observe, as if parties and the judicial system all are under one roof. Along with this the behaviour and demeanour of the witnesses can be observed and specifically depositions can be heard and reheard through playback of recordings as many time as court or parties may wish so. This facility of playback at wish will give bring additional efficiency while doing cross-examinations. However, court clearly supported that there may be circumstances where in-person presence may be necessary and in these cases it would be obligatory for the required person to be present in court.”6Justice AK Goel and Justice UU Lalit observed that-“.. the litigants have to travel to this court and spend on litigation. Question is whether this can be avoided...We are thus of the view that it is necessary to issue certain directions which may provide alternatives to seeking transfer of proceedings on account of inability of a party to contest proceedings at a place away from their ordinary residence on the ground that if proceedings are not transferred, it will result in denial of justice. Trial courts should use video-conference calls for recording evidence instead of insisting on personal appearances during hearings”7Video conference also save lots of public money. Like Kasab case any criminal accused of any heinous crime where risk is there to produce him in Court and also costly can be present through video conference in jail. Police has lots of duty and one of it is to take all accused person from jail for securing presence in court and after trial send back to jail. Whole process is time consuming, costly and a hudge burden of police official. We know that lack of police official so one police officers has 29 types of duty. This hampers his energy and become the reason of incomplete or hotchpotch investigation and it is the one of the reasons of increasing so many under trials in jail.Conclusion:- Video conferencing is a noble idea but the bitter truth is our network connection is not so strong. Specially in the remote areas or some areas where still no electricity is available it is not possible for setting up the connection. Signalling system is poor somewhere. Video buffering may be another problem due to bad weather. There may be lack of awareness, knowledge of IT application in an area. Video Conference tools are expensive also. Another disadvantage is lack of personal face to face communication or body language. It is also a barrier of a court if any parties reside in different time zone. Everything has pros and cons so I want to conclude this research by quoting  the words of Justice Bhagwati in the case of National Textile Workers' Union v. P.R. Ramakrishnan, (1983) 1 SCC 228-“We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind."8

Posted By

kaustav

4 days ago

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Practicing in both Civil & Criminal field of Law in High court, Calcutta as well as Subordinate/Trial Courts around West Bengal. Specialization in handling and/or conducting trial in CBI cases in Special (CBI) Courts.

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