Context: The Centre opposed any changes to the existing laws on marriage to recognise same-sex marriages, saying such interference would cause a complete havoc with the delicate balance of personal laws in the country.
- It said this in response to petitions seeking to recognise same-sex marriage.
- It said the 2018 landmark judgment of the Supreme Court decriminalising consensual homosexual sex in India was did not legitimize same sex marriage.
- No fundamental right: Despite the decriminalisation of Section 377 of the Indian Penal Code (IPC), the petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country.
- Indian family unit: Living together as partners and having sexual relationship by same-sex individuals is not comparable with the Indian family unit concept of a husband, a wife and children.
- Personal laws: Registration of marriage of same-sex persons also results in violation of existing personal codified law provisions.
The homosexual community faces innumerable difficulties in the society where the only accepted orientation is heterosexuality while homosexuality is regarded as abnormal.
- Identity Secrecy: They are not able to disclose their identity openly in society due to social barriers and often are forced to live a fake life of a heterosexual individual.
- They also enter into unhappy marriages but the same turns out to be more painful for them as well as their spouse.
- In-equality & Violence: They face inequality and violence at every place around the world.
- They face torture from people who mock at them and make them realize that they are different from others.
- Especially Khap Panchayats regard them as against Indian Culture and often ostracize them from villages.
- Deprived in Rights: In many countries, the rights enjoyed by opposite-sex couples are not enjoyed by same-sex couples. They are prohibited from those rights. Example - Gay marriages are still illegal in India.
Navtej Singh Johar & Ors. v. Union of India
- It is a landmark decision of the Supreme Court of India in 2018 that decriminalised all consensual sex among adults in private, including homosexual sex.
- Under the articles of 14 and 21, the Indian constitution rightly mentioned equality before the law and equal protection of the law for all. The preamble of the constitution also mandates justice such as social, economic, and political equality of status — for all.
- It termed sexual orientation as a “biological phenomenon” and “natural” and held that any discrimination on this ground was violative of the fundamental rights.
- It is, however, clarified that such consent must be free consent, which is completely voluntary in nature, and devoid of any duress or coercion.
- The bench also said that homosexuality was not a mental disorder, but a completely natural condition.
- Chapter XVI, Section 377 of the Indian Penal Code (IPC) 1860 was introduced during the British rule of India.
- The section criminalizes sexual activities “against the order of nature.”
- The act defines 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.
- The ambit of Section 377 extends to any sexual union involving penile insertion.
- Thus, even consensual heterosexual acts such as fellatio and anal penetration may be punishable under this law.