Challenging The Constitutional Validity Of Non Recognition Of Same-Sex Marriage

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Dibyajyoti Mandal, BBA LLB (Hons.), Amity Law School, Amity University Kolkata.

Soujanya Das, BA LLB (Hons.), Amity Law School, Amity University Kolkata.

Aakanksh Gupta, BBA LLB (Hons.), Amity Law School, Amity University Kolkata.

"History owes an apology to members of the LGBT community" - Justice Indu Malhotra in Navtej Singh Johar v. Union of India.

ABSTRACT

While personal laws like the Hindu Marriage Act and The Special Marriage Act restrict marriage to heterosexual unions, the Hon’ble Supreme Court while interpreting Articles 14, 15, and 21 of the Constitution, in it’s landmark judgements held that the right to choose any person to be one’s life partner is a fundamental right. As the jurisprudence in India is religiously inclined , it is important to note the transformation of the status of homesexuality in Indian culture, which went from being gender fluid in the Vedic times to being conservative in the colonial era. There is ample amount of evidence that the Ancient Indian culture depict homosexuality. It was only during the colonial era that homesexuality was criminalised by the introduction of Section 377 of IPC by the British, which upheld the European beliefs.

The paper contends that the decriminalisation of Section 377 of IPC by the Hon’ble Supreme Court in it’s landmark judment in Navtej Singh Johar v. Union of India is not enough to safeguard the fundamental rights of the LGBTQ+ community, and legal recognition of same-sex marriage is necessary as the Constitution prohibits discrimination based on one’s sexual orientation. The paper discusses the feasibility of “Civil Unions” to allow for legal recognition of same sex relationships in India to some extent. Finally, the paper concedes that the amendment of the The Special Marriage Act as the most viable remedy for persons seeking recognition of same sex marriage in India.

Keywords: Same-sex, Marriage, Personal Law, LGBTQ+, Right to Equality

CHALLENGING THE CONSTITUTIONAL VALIDITY OF NON RECOGNITION OF SAME-SEX MARRIAGE.pdf

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