We are living in 21st century and have progressed in many areas over the last decade but people still discriminate each other on the basis of religion, caste, race and gender. This can be especially seen for LGBTQ+ community, how people even deny to accept their existence and tell it’s a mere case of mental illness which can be cured or say it’s just western ideas. People have even resorted to hate crimes against the community. LGBTQ acceptance still has a long way to go but the good news is LGBTQ+ acceptance is increasing around the world slowly but surely.
If we talk about India, on 6th September 2018 the Supreme Court of India in the case of NAVTEJ SINGH JOHAR V. UOI decriminalized homosexuality. However as of now, India does not recognize same sex marriage, but provides some limited legal recognition to cohabiting same-sex couples in the form of legal relationships. There are a lot of problems faced by same sex couples today such as opening a joint bank account, entitlement to the deceased partner’s gratuity and pension. All these problems still need to be addressed by the government.
We have definitely come a long way, today we are talking about same sex marriage, but up until 2018 even homosexuality was criminalized in India and up until 2018 if someone was found to be homosexual then they could be punished up to 10 years for unnatural offence.
In India marriage is only recognized between a heterosexual man and woman. Due to which rights like adoption, surrogacy and employment benefits for homosexuals are denied. The biggest argument here is that there cannot be discrimination in right to marriage for LGBTQ+ community because this again infringes many rights like right to equality, right to non discrimination, privacy, dignity, freedom of expression, etc.
Why Was Same Sex Marriage Not Legalized In India?
In the bench of five judges deciding the case, 3 of them said same sex marriage cannot be legalized in India. But 2 judges including CJI of India were in favor of same sex marriage. But all the judges agreed that right to marriage is not a fundamental right and only parliament can make laws on this and not courts. Hence, it wasn’t legalized.
The first country to legalize same sex marriage was Netherlands on April 1, 2001. Till now around 39 countries have legalized it.
Why Same Sex Marriage Should Be Legalised?
- First, it can deny that the third gender people are not guilty because they cannot choose the gender they were born in.
- Second, if same sex marriage is illegal and stigmatized it can lead to a feeling of isolation and may lead to social problems like crime. For example; if same sex marriage is banned and third gender people are seen as kind of guilty then it will become difficult for them to find jobs to survive, they therefore will have to resort to committing crimes in order to survive.
- Third, there are around 30 million orphans in India, same sex marriage will increase the number of adoption cases and enhance the well being of society all together.
- Fourth, India is a overpopulated country and encouragement of same sex marriage would lead to lower population growth.
India is a land of diversity and our social construct is vastly different from that of western countries. So, it may take time for a law like that to be passed in India. But as they say, “Love is Love”. Love comes in all forms, it would be wrong to say that you cannot marry another person just because they are not of the opposite sex.
Author Name- Aprajita Srivastava, is a B.A., LL.B. (Hons.) Student at NMIMS, Bangalore.
