GAY MARRIAGES IN INDIA: LEGAL RECOGNITION OF SAME SEX BY LAW

Gay marriages in India

 GAY MARRIAGES IN INDIA: LEGAL RECOGNITION OF SAME SEX MARRIAGES IN INDIA

BY AISHWARYA AGRAWAL

 

 

  1. Introduction

Gay marriage is the state or condition of being married to another person of the same gender. It is the ceremonial union of two people of the same sex. But, marriage being considered a union of a male and female, gay marriage has been a debatable issues all over the World. In late 20th century, this kind of marriage has gained a huge momentum.

It was Netherlands, who provided first law for marriage of people of the same sex in 2001. As on 2 May 2017, gay-sex marriage is legally recognized in various countries like: Belgium, Canada, , France, Colombia,Iceland, Ireland, Luxembourg, Finland,  Netherlands, Denmark New Zealand, Norway, Portugal, Mexico, South Africa, Spain, United Kingdom, United States and  Uruguay, Sweden.

The US Supreme Court ruled that gay marriage is a right protected by their Constitution in all 50 states on June 26, 2014. Earlier, same-sex marriage was legal in 37 states and Washington DC, but not in the remaining 13. As of now, Gay marriage in India is illegal and a matter of great debate.

 

  1. Section 377 of the Indian Penal Code, 1860 And Gay Marriage in India

Section 377, Chapter XVI of the Indian Penal Code, 1860 defines unnatural offence as-

 Voluntarily, carnal inter­course against the order of nature with any woman, man or animal, is punishable with imprisonment for life, or with impris­onment for a term extending upto ten years, and fine.

Practice of gay marriage as per Section 377 of the Indian Penal Code, 1860 is not legal and IPC defines it as unnatural offence and its practice is punishable in eyes of law, irrespective of the voluntarily and involuntarily consent.

In July 2009, this section was decriminalized with respect to sex, when practiced by adults, by free consent and not as a result of coercion, or any undue influence, by the Delhi High Court. But that judgement has been overruled by the Supreme Court of India on 11 December 2013, with the Court holding that matters relating to amending or repealing Section 377 are outside the powers of judiciary and should be to Parliament of India.

 

How it was responded:

  • Ban Ki-moon, UN chief stressed on the need for equality and opposed any discrimination against LGBTs.
  • Sonia Gandhi, President, Congress party, asked Parliament remove with section 377 from IPC.
  • Actor Imran Khan took action in order to disabuse homophobic people from their mistaken notions of homosexuality in a satire video. Many Mumbai film industry personalities such asAmitabh Bachchan, Aamir Khan, Shruti, Sonam Kapoor, Anushka Sharma, commented against the ruling. Many other well known persons, writer Vikram Seth including and Nobel Laureate Amartya Sen  protested against the Supreme Court ruling.

 

  1. The Opinion of supreme court of India:
  • In 1991, AIDS Bhedbhav Virodhi Andolan, for first time through its article Less than Gay: A Citizen’s Report, brought forward the problems with Article 377 and asked for its repeal. As over years, no change and years could be seen, till Naz Foundation (India) Trust, an activist group, took the issue.

 

  • Naz Foundation v. Govt. of NCT of Delhi [160 Delhi Law Times 277], (Delhi High Court 2009)

Naz Foundation took the issue in 2001, by filing a Public interest Litigation (PIL) to Delhi High Court for legalizing of homosexual intercourse, by free consent between the adults. Delhi High Court dismissed the petition stating that Naz Foundation (India) Trust has no locus standi. Later Supreme Court of India sent the case back to the Delhi High Court to reconsider it on merit, and favoured Naz Foundation’s filing of PIL.

Decided by a two-judge bench comprising of then Chief Justice Ajit Prakash Shah and Justice S. Muralidhar,High Court,held that treating consensual homosexual sex between adults as a crime violates fundamental rights, resulting  in decriminalisation of homosexual acts involving consenting adults.

Later, it was challenged in the Supreme Court of India.

 

  • Suresh Kumar Koushal and another v. NAZ Foundation and others [CIVIL APPEAL NO.10972 OF 2013]

On 11 December 2013, the Supreme Court of India overturned the 2009 judgement given by the High Court of Delhi stating that judicial intervention was not required in this issue. The Supreme court bench of justices G. S. Singhvi and S. J. Mukhopadhaya stated that Section 377 IPC does not suffer from any vice of unconstitutionality and held High Court of Delhi decision as legally unsustainable. And asked Parliament to take the issue.

  • 2014:

In January 2014 when review petition was filed against the above judgment, it was dismissed by Supreme Court.

  • 2016:

Later, for final hearing of curative petition in the Supreme Court of Naz Foundation and others on 6 February 2016, three-member bench headed by then the Chief Justice of India T. S. Thakur stated that the petitions raise “significant questions of constitutional law” and referred it to a 5 judge bench to determine the said questions which means the court was satisfied that there was a “substantial question of constitutional law” have aroused.

  • It would we worthy to note that Suresh Kumar Kaushal v Naz Foundation contradicts the later judgement in National Legal Services Authority v Union of India (WP (C) of 2012) where observations regarding sexuality and gender identity and, in particular observations regarding the use of 377 made and transgenders were considered as ‘third gender’ and providing them with their fundamental rights.
  • LGBT rights include gay marriage rights; hence an image below depicts the history of battle of LGBTs for their rights.

 

VI]. Recognizing New States

Henry L. Stimson stated:

The recognition of a new state has been described as the assurance given to it that it will be permitted to hold its place and rank in the character of an independent political organism in the society of nations.”[1]

Also, Dr. Walid Abdulrahim, in his ‘Recognition’ stated that:

Recognition is a discretionary unilateral act exercised by the government of a State officially acknowledging the existence of another State or government or belligerency.

Hence, Recognition is the willingness of a recognizing state to have intercourse with the entity which is being recognized. This act is possible in numerous ways, ranging from entering into full diplomatic relations, or sending a formal letter to the newly recognized state, an official pronouncement, and others. For example, Recognition of Bangladesh by India was through personal message. It would be worth to note that India was the first country to recognize Bangladesh. As per International Law, Recognition is nothing but a formal acknowledgment of the status of an independent State by other existing states.

Recognition of state is one of the most challenging and complicated issue in the International Law, involving complexity and conflicts regarding recognition with a combination of politics, national and international law.  Its lawful and political basics are inter-woven and can’t be isolated, however the truth of the matter is the political impact is all the more however their demonstrations have legitimate importance.

  • Recognition is much more a question of politics than of This is reflected by the practice of various states. The act of the State recognition is conditioned principally by the requisite, of protecting its own national interests, which lie in maintaining appropriate relations with the new State or the new government. However, at times the recognizing State uses legal principles as a convenient camouflage for political decisions.
  • Theoretically, recognition remains primarily a unilateral diplomatic act on the part of the recognizing State. No collective procedure for granting recognition based on established legal principles has yet been evolved by the international community.
  • There are several distinct categories of recognition. There are the recognition of a new State, a new government and In addition there are dejure, defacto, conditional, implied and express recognition.

However, the decentralized method considered for ‘creating’ new subjects of International law might lead to the anomalous situation in which a new community is a state bound by international law for recognizing states but not for others.

Political and legal act of recognition:

The term ‘recognition’ may be said to be comprised of two quite distinct acts: a political act and a legal act. Professor Kelsen in one of his article entitled ‘Recognition in International Law, Theoretical Observation’[2] has given expression to certain ideas which seem to warrant discussion.

Professor Kelsen makes a distinction between legal and political recognition, holding the former to be an act of ‘cognition,’ the establishment of the fact of statehood (or government) which without it would not exist in an international sense, and the latter, the expression of a willingness to enter into political relations with the thus recognized state or government, an act which Kelsen regards as purely optional, discretionary and indeed arbitrary.

[3] He suggests that legal recognition is constitutive, bringing the state into existence in the international sense, and that it is not a state until the fact of statehood is recognized by an authoritative organ of the international community, i.e., another state or states. Political recognition, on the other hand, is merely declaratory of a pre-existing legal statehood or government, and may be followed by further diplomatic relations, such as the exchange of ambassadors, treaties, etc.

 

Aishwarya Agrawal is a student pursuing B.A.LL.B from Hidayatullah National Law University, Raipur and is passionate towards the field of Law. 

 

 

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