In India, looking beyond the binary to a spectrum (GS-2, Governance, The Hindu)

In India, looking beyond the binary to a spectrum (GS-2, Governance, The Hindu)

Context:- A case was filed in the High Court of Delhi surrounding the question of same­ sex marriages. The Solicitor General of India was called upon and made himself available only to request the court to have the matter adjourned on the ground that it was not urgent.

What is right:-

  • Rights are nothing but the obligations of the state. These rights are formulated to ascertain twin principles viz. Anti-dehumanisation and Anti-hierarchy. In India, this can be reflected in a chapter on Fundamental Rights in the constitution. 
  • The division of human rights can be categorized into four generations which was initially proposed in 1979 by the Czech jurist Karel Vasak at the International Institute of Human Rights in Strasbourg.

What are the four category of Human Rights:-

First-generation human rights:-

  • Also known as blue rights.
  • They deal with liberty and participation in political life.
  • They are negative in character which protect the individual from excesses of the state. 
  • Examples of these are the right to life, equality before the law, freedom of speech, freedom of religion, property rights, the right to a fair trial, and voting rights.

Second-generation human rights:-

  • They are fundamentally economic, social, and cultural in character.
  • They guarantee different members of a section of society equal conditions and treatment.
  • These include the right to be employed in just and favorable conditions, rights to food, housing and health care, as well as social security and unemployment benefits.

Third-generation human rights:-

  • They are also known as Solidarity human rights.
  • These include a new generation right.
  • These include Right to self-determination, Right to economic and social development, Right to a healthy environment, Right to natural resources.

 Fourth generation of human rights:-

  • The rights that cannot be included in the third generation, future claims of first and second generation rights and new rights.
  • Examples of these rights are The right to equally access computing and digital spaces, The right to digital self-determination, The right to digital security, The right to access one’s own digital data.

Issue of 377:-

  • This was a colonial legacy. Which said that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished”.
  • This section was challenged on the particularity of article 14,19 and 21 of Indian constitution.

Problems faced by LGBT Community:-

  • Physical and emotional abuses against lesbian, gay, bisexual and transgender people including arbitrary arrests, violence, bullying in schools, denial of access to health and harassment at work.  
  • A high level of depression is amongst members of the LGBT community 
  • Failures because of societal rules and discrimination in a normal life.  
  • Financial security is denied to these people 
  • Constant police harassment of the gay community.  
  • Doctors need to say that homosexuality is not a disease.  
  • Government should do capacity building of doctors to understand health issues specific to the homosexual community, it needs to be part of the educational curriculum.

Indian perspective on same sex marriage:-

  • In India general marriage are governed under Hindu Marriage Act, 1955, Indian Christian Marriage Act, 1872, Muslim Personal Law (Shariat) Application Act, 1937.
  • same-sex and queer marriages are not clearly recognized in India and neither by society.
  • Arun kumar and Sreeja vs The Inspector General of Registration and Ors:- Madurai Bench of the High Court of Madras employed a progressive  interpretation holding that the term ‘bride’ under the Hindu Marriage Act, 1955 includes transwomen and intersex persons identifying as women. 

What are the court judgments regarding IPC 377?

Naz Foundation vs. Govt. of NCT of Delhi (2009)

  • Delhi High Court struck off in its famous judgement on section 377. Court specifically legalizing consensual homosexual activities between adults.

Suresh Kumar Koushal Case (2013)

  • SC completely overturned the previous judgment by Delhi High Court (2009) that decriminalized homosexual acts and criminalized homosexuality once again.
  • In 150 years less than 200 persons had been prosecuted under Section 377.
  • SC argued that, “plight of sexual minorities” could not be used as an argument for deciding the constitutionality of law.
  • Further, SC said that it was for the legislature to look into the desirability of deleting section 377 of IPC.

Justice K.S. Puttaswamy vs. Union of India (2017)

  • Right to Privacy is intrinsic to life and liberty and must be included in Fundamental right under Article 21 of the Indian constitution.
  • Bodily autonomy was an integral part of the right to privacy said by Supreme court
  • Sexual orientation of an individual is one’s choice.

Navtej Singh Johar vs. Union Of India (2018)

  • This judgement decriminalized homosexuality.

Why decriminalization of 377 is a milestone:-

  • It recognizes the rights of most discriminated persons.
  • It shows the upholding of fundamental rights to all.
  • It is progressive judgment which will further gives consolidation to same sex marriage’s rights.
  • Protection of Human rights under United nation human declaration for which India is party.

International views on the issue of same sex marriage and LGBTQIA+ rights:-

Constitutional Court of South Africa In 2005 :- 

  • Minister of Home Affairs and Another vs Fourie case:- where court said that the common law definition of marriage i.e. “a union of one man with one woman” was inconsistent with the Constitution of the Republic of South Africa
  • So the words “or spouse” was included in place of “husband”. 
  • The South African government enacted  the Civil Union Act, 2006 which said marriage is voluntary union of two persons above 18 years of age.

In Australia:-

  • The Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 was enacted which provide provide equal entitlements for same-sex couples in matters of, inter alia, social security, employment and taxation.

England and Wales:-

  • the Marriage (Same Sex Couples) Act 2013 enabled same-sex couples to marry in civil ceremonies or with religious rites.

United States of America:- 

  • Supreme Court of the United States decided that the fundamental right to marry is guaranteed to same-sex couples.
  • Obergefell vs Hodges ushered in a landmark shift in the American position and allowing same-sex marriages

A case of Ireland:-

  • Ireland is 1st country which recognizes and legalizes the same sex marriages.

Way forward:-

  • Where ever there is any legal or statutory bar to same­ sex and queer marriages must necessarily be held to be unconstitutional and specifically on the violation of article 14,19 and 21.
  • There is a recognition that the unequal laws discriminating against the LGBTQIA+ community have acted and are acting as a trigger to reform and modernize the legal system which in actual sense provides equality.
  • Self Respect marriages were legalized in Tamil Nadu through amendments to the Hindu Marriage Act, 1955.
  •  A community evolved mechanism which ensure the rights of all people especially LGBTQIA+ should be protected.
  • Government must amend the laws and put a progressive definition of marriage.
  • Court must also pronounced a progressive and more sensitive approach towards the deprived people of same sex marriage.
  • 172nd Law Commission Report recommended deletion of Section 377. 
  • In 2016, a UN report had urged to decriminalize consensual homosexual relations.
  • Government bodies need to be sensitized and made aware about the changed position of law to ensure that the LGBTQ community is not denied public services or harassed for their sexual orientation.


Download Daily Current Affairs of 19th June 2021

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