DECRIMINALIZATION OF SECTION 377 IS NOT ENOUGH

The decriminalization of section 377 of the IPC in the landmark case of Navtej Singh Johar v. Union of India[1] allowed adult same-sex couples the right to have consensual sexual relations in private. However, there still remain challenges towards achieving the goal of equality.

Discrimination in personal laws is a major issue that homosexual couples face. Family laws relating to succession, maintenance and pension are not available to homosexual couples as their marriage is not legally recognized. Even adoption of children is extremely difficult for such couples due to the lack of legal recognition.

Same-sex marriages are still not legal in India but there are judicial precedents that can be used as arguments to obtain legal recognition of same-sex marriages. Justice DY Chandrachud, in Justice KS Puttaswamy (Retd.) v. Union of India[2], stated that “the right to privacy must encompass and protect the personal intimacies of marriages as well”.[3] This observation of the court can also be construed as a statement that respects the privacy of homosexual couples. It is important to look at countries where same-sex marriages are legal and their legislations will need to be examined that India progresses towards giving homosexual couples equal rights.

The Netherlands was the first country to legalize same-sex marriages in 2001. The laws are very liberal and the procedure for couples to become parents is now much easier. Till 2014, same-sex couples could only adopt children. However, in 2014 this law was changed and allowed a co-parent (a co-parent can be defined as an agreement in which two individuals agree to take care of a child and there is not necessarily a romantic relationship between the two parties) to become a legal parent. If the sperm donor is known to the woman, the co-mother can become a parent through acknowledgment and only needs to inform the Registrar of Births, Deaths, Marriages, and Registered Partnerships or by notarizing the relationship. If in the case the sperm donor is unknown to the couple, then under the Human Fertilization (Donor Information) Act, the co-mother can become the legal parent as soon as the child is born, since there is no role of the biological father in bringing up the child.[4]

In Taiwan, the first Asian country to legalize same-sex marriages, there are still issues that couples need to face. Residents can only marry citizens of countries where same-sex marriage is legal and they could only adopt children who were biologically related to one of them. The residents in Taiwan are constantly striving to get universal rights for all Taiwanese couples to marry individuals of the same sex.[5]

These contrasting examples show the differences between two countries where same sex marriage is legal but in one case, the couples do not get all the rights that a heterosexual couple would get. Thus, India would have to make a legislation that is detailed and provide same-sex couples an opportunity to live as equal citizens.

The fight for the recognition of same-sex marriages in India has been a long-standing one. The highest courts of the land have often attempted to make family laws inclusive and ensure that the right of consenting adults to enter into a union, is not encroached upon. These judgments do not necessarily talk about same-sex marriages, but it is important to realize that once an individual is an adult, they can marry anyone they wish to, and no individual has the right to threaten the couple out of marriage.

Lata Singh v. State of Uttar Pradesh[6] was a case in which the Supreme Court reiterated that individuals have full rights to marry anyone outside their caste and if anyone opposed such a marriage, they can be prosecuted in the court of law. This observation can be made concerning same-sex marriages as well. If two individuals are consenting to marry, no person has the right to not let them live peacefully. There is a need to have a change in people’s mindsets.

There have been various judgments that have constantly stated that the right to marry is a part of the right to life mentioned in Article 21 of the Indian Constitution. In Shakti Vahini vs. Union of India[7], the Supreme Court was discussing the practice of honor killings in parts of Northern India and explicitly ruled that the choice of an individual to marry someone must not be violated in any case and that these freedoms are protected by the law of the land. This judgment also lays down the law that freedom to marry is also constitutionally protected even though it is not explicitly stated.

To conclude, decriminalization of section 377 was a major step towards recognizing the rights of the LGBTQ community. However, there still needs to be a lot did and the most important thing is the treatment of these couples as regular individuals and giving them the rights that a heterosexual person gets. Hence, it becomes important for the legislature to make our laws non-discriminatory concerning adoption and marriage to protect the rights of these individuals.