The Rights of the Deceased: Moral Rights Incidental to Copyright Law
- Vanshika Agrawal
- 2024-04-25
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3 Why there was Need for Legal Recognition of Same Sex Marriage:
4 Global Perspective on Same Sex marriage
Same-Sex Marriage Around The World
This article is the analysis of homosexual marriages in the Indian context as an invisible conflict that was successfully kept undercover. It also attempts to describe and explain various aspects of Homosexuality including the evolution, the reasons, the societal attitude, and reactions towards such relations after the decriminalization of Section 377 of IPC. The article also draws insight from Europe, the U.S, and our country India where homosexual marriages are legalized.
Western society constructs heterosexuality as the norm, but this was not always explicit.[1] As sociologist Michael Foucault has shown,[2] the invention of the word ‘homosexual’ only emerged during the Victorian era in the late 1800s. Queen Victoria wanted to stop male aristocrats from having sex with other men, something that was not openly talked about, but still practiced. There was no word for men having sex with other men, and Queen Victoria charged her physicians with studying this phenomenon. Having established a word for this, homosexual, these medical doctors invented a counter-position, that of the heterosexual.
Love is affection. The peril to marriage is the alarmingly high divorce rate. Marriage is considered as a legal union of two individuals. People who do not have faith in in religion choose to get married in a registry office. Marriage shows the strongest commitment that one individual can make. LGBT are also the human and have the similar needs and desires just as heterosexual human beings. Getting into marital relationship is the ultimate way of showing one’s love and commitment to his partner, so why gay people should be deprived of this right.
The UN Human Rights Council, expressing “grave concern” over violence and discrimination against individuals based on sexual orientation and gender identity. In 2014 the council passed a resolution to combat anti-LGBTQ+ violence and discrimination.[3]
U.S
The U.S. Supreme Court ruled on June 26, 2015, that the Constitution grants same-sex couples the right to marry, effectively legalizing same-sex marriage in the thirteen states where it remained banned.[4]
Europe
Western Europe. Same-sex marriage has been legalized in the Netherlands in 2001, Spain in 2005, Norway in 2009, Sweden in 2009, Portugal in 2010, Iceland in 2010, Denmark in 2012, France in 2013, the United Kingdom in 2013, Luxembourg in 2015, Ireland in 2015, Finland in 2017), Malta in 2017, Germany in 2017, and Austria in 2019.[5]
In India
There are five important judgements by the honourable judicial system of India which took the progressive steps in decriminalizing the Sec 377 of Indian Penal Code (IPC)and providing a gender identity to the third gender i.e. LGBTQ.
1. NAZ foundation case in 2009[6]
In this case, the motive in the filing of this case was the removal of Sec 377 of IPC or better to say “Decriminalisation of Sec 377” for the sake of homosexual community by NAZ Foundation. Section 377 was seen as to be a violative of article 21. Under this article the right to life specifies that no individual can enjoy the right to life without dignity and privacy. Delhi High Court, discussed the Right to Equality as per the raised contention and laid down that Sec 377 is the violative of Article 14 & 15 i.e.
Right to Equality as it takes along with it an unreasonable discrimination on the basis of sex and gender. It classifies the homosexuals as a different class away from the two major classes of male and female. Sec 377 not only makes the sexual activities “against the order of nature” illegal but also criminalises the consensual sex done by the individuals belonging to this particular class i.e. homosexuals.
The High Court of Delhi also discussed the article 15 in which the discrimination on the basis of sex is prohibited. The court laid down that under this article the sex included is not only the biological sex but also the sexual orientation. The more importance should be given to not the biological sex but to the psychological test that determines the state of an individual. Finally, Delhi High Court laid down that the part of the section 377 which criminalises the homosexual act should be declared unconstitutional.
2. Suresh Kumar Koushal v. NAZ Foundation in 2013[7]
Suresh Kumar Koushal against the judgment passed by the Delhi High Court in the favor of NAZ Foundation i.e. Suresh Kumar Koushal and another v NAZ Foundation and Others. The main arguments raised in this case were as follows:
Homosexuality is a criminal offence and only parliament have the power to make necessary changes through legislation and amendments and the court cannot interfere in the legislation process. It is upon the discretion of the parliament to pass any law or
make any necessary change in the laws according to the majority of the parliament members.
Another argument raised in the supreme court was that the right to privacy cannot be extended to that extent that an individual commits an offence. Thus right to privacy does not cover homosexual acts. This judgement of Supreme Court was purely in contrast to the judgement of the Delhi High Court and again criminalised the homosexual activities.
3. National Legal Services Authority v. Union of India &Ors[8]
The next major step taken is by the National Legal Services Authority of India. The main outcome of this case is that the court recognised that all existing laws in our country are purely on basis of the two major binary genders male and female and the rights of the individuals belonging to the transgender community are not protected by any of the provisions and laws. Thus the basis of discrimination with the transgender community has been established by our own law.In order to fulfil this loophole of our constitution the supreme court in its judgement recognised several laws of the transgender community which are as follows:
Art. 14, Equality before Law, the verdict states that the phrase “any person” in the article 14 includes not just only male and female but also transgender. Thus transgender community should be see as an ordinary people in the eyes of law.
Art. 15 & 16, No discrimination on the basis of gender. Supreme Court laid down that if there is any kind of discrimination on the grounds of sexual orientation then it is the violative of the art. 15 and 16 and thus the individual
whose right is infringed can directly approach to the supreme court because of the infringement of the fundamental right under art. 32.
The Supreme Court in its verdict laid down that privacy, gender identity, and integrity of the transgender community are also protected under the article 19(A) of the constitution of India. In a way the sec 377 is also include under this article as state by the honourable court. Art. 21, Right to live with dignity also includes the right to choose gender identity. This case lead to the legal recognition of self-identity and gender identity. That is of three major types: –
4. Justice K.S. Puttaswamy v. Union of India 2017[9]
This case affirm that the right to privacy is one among the fundamental rights grant to the individuals by
Constitution of India. This case was decide by a 9-judge constitutional bench head by Chief Justice Khehar. Chandrachud in his verdict laid down that the court realised the duty of the Supreme Court to rectify the mistake done
by Supreme Court in the Suresh Kumar Koushal case.
He laid down in its judgement that sexual orientation is the attribute of the privacy which is mainly protect under Art. 14, 15, 21 of Indian Constitution.
5. Navtej Singh Johar v. Union of India 2018[10]
The honourable Supreme Court declared sec 377 partially unconstitutional. All consensual sex among adults in private including homosexual sex were de-criminalise by the court. The judgement was pass by the 5-judge constitutional bench head by Chief Justice of India Dipak Mishra.
In support of article 14 Supreme Court laid down that there is not any valid intelligible differentia or any rational nexus
to criminalise the consensual act of two consenting individuals just because they are homosexual. Such traditional norms based on morality or are ambiguous or based on subjective test should be give way.
In support of article 15 Supreme Court decree that the approach of Delhi High Court in order to reach at any conclusion of the NAZ Foundation case that “sex includes both biological sex and sexual orientation” is consider to
be the most appropriate approach. As this approach represents our improved understanding.
In support of Article 19 Justice Chandrachud said that the human sexuality cannot be defined narrowly and the discrimination against LGBTQ is unconstitutional. Article 19 protects the right of a person to express his /her personal
identity i.e. sexual orientation and expression freely to the whole world.
In the support of Article 21 Supreme Court laid down that right to life and liberty includes privacy, dignity, and autonomy. With certain reasonable restrictions these rights of homosexual class can be curtail but cannot restrict
them from the enjoyment of these rights on the basis of sec. 377 IPC.
The issue of same-sex marriage oftentimes started enthusiastic and political conflicts among allies and adversaries. By the mid-21st century, a few jurisdictions, both at the public and subnational levels, had legalized same-sex marriage; in different locales, sacre measures were embrace to keep same-sex relationships from being endorse, or laws were sanction that wouldn’t perceive such relationships performed somewhere else. That a similar demonstration was
assessed so contrastingly by different gatherings shows its significance as a social issue in the mid-21st century; it additionally exhibits the degree to which social variety and cultural diversity persevered both inside and among nations.
[1]Dr. ZuleykaZevallos, Rethinking Gender and Sexuality: Case Study of the Native American “Two-Spirit” People,
(Date Accessed February 1st 2021, 6.27 pm)https://othersociologist.com/2013/09/09/two-spirit-people/
[2]Michel Foucault,The History of Sexuality: An Introduction, Volume 1, (Date Accessed February 1st 2021, 6.35 pm) https://www.sparknotes.com/philosophy/histofsex/section1/
[3]UN: Landmark Resolution on Anti-Gay Bias, Condemns Violence, Bias Based on Sexual Orientation, Gender Identity(Date Accessed February 1st 2021, 6.15 pm)
https://www.hrw.org/news/2014/09/26/un-landmark-resolution-anti-gay-bias#
[4]Hodges, 576 U.S. 644 (2015)
[5]Claire Felter and Danielle Renwick ,Same-Sex Marriage: Global Comparisons, The council on Foreign Relations(Feb 1st 2021, 6.19 pm) https://www.cfr.org/backgrounder/same-sex-marriage-global-comparisons
[6] NAZ Foundation v. Government of NCT of Delhi &Ors. (2009) 111 DRJ 1 (DB)
[7] Suresh Kumar Koushal and another v NAZ Foundation and Others (2014) 1 SCC 1
[8] National Legal Services Authority v. Union of India &Ors. AIR 2014 SC 1863.
[9] Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India AndOrs.
[10] Navtej Singh Johar&Ors. v. Union of India (2018) 1 SCC 791
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