The Centre has opposed before the Delhi High Court a petition seeking recognition of same-sex marriages, saying, “our legal system, society and values do not recognise marriage between same-sex couples”.
On September 6, 2018, a five-judge Constitution Bench, led by then Chief Justice Dipak Misra, unanimously held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code is clearly unconstitutional.
What did the Centre say?
Solicitor General Tushar Mehta, representing the Centre, said the 2018 judgment of the Constitution Bench of the Supreme Court “merely decriminalises homosexuality or lesbianism, nothing more, nothing less”.
- The SG is said to have asked the court that “if a wife dies within seven years, there is a separate punishment. Now, who will be treated as a wife [in same sex marriage]?”.
- The Solicitor General said the petition was not permissible as it was asking the court to legislate and also that any relief granted “would run contrary to various statutory provisions”.
Argument of the petitioner
- The petition was filed by Abhijit Iyer Mitra, a member of the LGBT community, and three others seeking to recognise same sex marriages under Section 5 of the Hindu Marriage Act on the ground that “it does not distinguish between homosexual and heterosexual couples”.
- The petitioners argued that “despite the fact that there is absolutely no statutory bar under the Hindu Marriage Act of 1955 and the Special Marriage Act of 1956 against gay marriage, the same are not being registered throughout the country and also in the National Capital Territory of Delhi”.
- The prohibition of marriage of LGBT people on the basis of sexual orientation and gender identity is an absolute discrimination towards them and is also violative of Right to Equality as granted by the Constitution of India. The petition also cited names of 27 countries including the U.S. where same sex marriage is legal.
Decriminalisation of homosexuality
- The Supreme Court in 2018 unanimously ruled that Gay sex among consenting adults is not a criminal offence. The bench maintained that it is a part of a 158-year-old colonial law that criminalised it, violated the constitutional right to equality and dignity.
- It unanimously held that the Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community possess the same constitutional rights as other citizens of the country.
- 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 ruled that it is declared that insofar as Section 377 criminalises consensual sexual acts of adults in private, is violative of Articles 14, 15, 19, and 21 of the Constitution.
- 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.
Why there is opposition to LGBT rights in India?
- The Apostolic Churches Alliance was opposing case since they argued that homosexuality was an abomination in the Bible.
- It is contended that decriminalising homosexuality would make the Prevention of Immoral Trafficking Act, 1956 redundant.
- It is also maintained that if the section is allowed then sexual transmitted diseases like AIDS would further spread and harm the people.
- Moreover, they contended that it would lead a big health hazard and also morally degrade the society.