Right to LGBTQ Marriage
#GS-02 Social Justice
Navtej Singh Johar v. Union of India:
- Navtej Singh Johar vs. Union of India is a landmark case in which Supreme Court decriminalized consensual homosexuality under IPC section 377.
- Supreme Court in Suresh Kumar Koushal v. Naz Foundation (2013) case held that Section 377 did not suffer from any “constitutional infirmity”.
- This decision was revised in the Navtej Singh Johar
- Yogyakarta Principles were created by a group of international human rights experts in Yogyakarta, Indonesia in 2006.
- Its aimed at outlining a set of international principles relating to sexual orientation and gender identity.
- Supreme Court in the Navtej Singh Johar case emphasised the need to apply ‘Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity’ as a part of Indian law.
Special Marriage Act (SMA), 1954
- Marriages in India can be registered under the religious personal laws such as Hindu Marriage Act, 1955, Muslim Marriage Act, 1954.’
- Special Marriage Act, 1954 was brought in to support inter religious marriages.
- It makes it the duty of the Judiciary to ensure that the rights of both the husband and wife are protected.
- Section 5 of the SMA makes it mandatory for the couples getting married under it to give a notice to the Marriage Officer 30 days before the date of marriage.
- LGBTQ activists wants the 1954 Act should be made gender–neutral.
- In Dudgeon vs UK (1981) the European Court of Human Rights struck down Section 11 of the Criminal Law Amendment Act 1885 (criminalises male homosexual acts in England, Wales and Northern Ireland) because it disproportionately restricted personal and family life.
- The court adopted a privacy based approach and did not argue the question of equality of treatment.
- Thus, in Oliari vs Italy, the same sex couple failed to get marriage rights in Italy.
- This was because the court reasoned that states could not be obligated to grant marriage equality, provided there was some form of legal recognition of their rights.
- Contrarily, in South Africa LGBTQ+ community litigated rights based on ‘equality’
- This resulted in constitutional protection of ‘sexual orientation’ and judicial recognition of marriage, adoption, etc.
- Meanwhile, the US decriminalised same-sex relations in Lawrence vs Texas (2003) and granted marriage equality in Obergefell v. Hodges (2015) under the due process
- The due process clause prohibits the state from taking away personal liberties without substantive and procedural fairness which is essentially a privacy argument.