Supreme court of india judgement on gay rights
LGBT Rights: Comparing SC to SCOTUS
On June 15th 2020, the Supreme Court of the United States (SCOTUS) clarified that sex-based discrimination includes discrimination based on gender identity and sexual orientation. Bostock v Clayton Countyis a landmark judgment for the LGBT community in more ways than one: it prohibits workplace discrimination against LGBT people and accepts an expanded definition of ‘sex’ in the context of equality legislation.
Has SCOTUS jurisprudence on equality and LGBT rights, in particular, had an impact on its Indian counterpart? In Navtej Singh Johar v UOI, the Supreme Court of India (SC) declared that the criminalization of homosexual intercourse under Section 377 was unconstitutional. In doing so, it made liberal reference to the SCOTUS decisions in Lawrence v Texas, which struck down state laws criminalizing sodomy, and other related cases.
However, the two courts adopted different legal principles in support of their decisions. In Lawrence, SCOTUS ruled that that the law in question constituted an undue interference in an individual’s secret life; it rejected the contention that it violated the right of the LGBT community to equal treatmen
Case Description
On November 14th, 2022, two same-sex couples filed writ petitions in the Supreme Court seeking legal recognition of same-sex marriages in India. The petitions were centred around the constitutionality of the Exceptional Marriage Act, 1954 (the Act). The first petition was filed by Supriyo Chakraborty and Abhay Dang. The second petition was by Parth Phiroze Merhotra and Uday Raj Anand.
The petitioners argue that Section 4(c) of the Proceed recognises marriage only between a ‘male’ and a ‘female’. This discriminates against same-sex couples by denying them matrimonial benefits such as adoption, surrogacy, employment and retirement benefits. The petitioners asked the Court to declare Section 4(c) of the Act unconstitutional. The plea has been tagged with a number of other petitions challenging other personal laws on similar grounds. The challenged enactments include the Hindu Marriage Act, 1955 and the Foreign Marriage Behave, 1969.
The petitioners argue that the non-recognition of lgbtq+ marriage violates the rights to equality, freedom of expression and dignity. They relied on NALSA vs Union of India (2014) and Navtej Singh Johar vs. Union of India (2018) which re
Unpacking Indian Supreme Court’s finding on same-sex marriage
India’s uppermost court has declined to grant legal recognition to same-sex marriages, drawing criticism from LGBTQ rights activists, who dubbed the decision “regressive”.
“The court has failed its duty to uphold the constitutional rights of the people of India not to be discriminated on the basis of their sexuality,” Pyoli Swatija, a lawyer at the Supreme Court, told Al Jazeera.
Recommended Stories
list of 3 itemslist 1 of 3India’s top court rejects appeal to legalise homosexual marriage
list 2 of 3LGBTQ ad in India pulled after backlash. But could it pay off?
list 3 of 3Will India decriminalise gay sex?
end of listThe story has made front-page headlines in the socially conservative country – the world’s most populous – over the past year, sparking furious debates online. India’s LGBTQ community has long felt like second-class citizens, facing opprobrium from the government, religious leaders and conservative elements of society.
In the court earlier this year, Prime Minister Narendra Modi’s government cast arguments in favour of extending rights as “urban, elitist views”, stating that gay marriage is “not comparab
SC verdict on same sex marriages Explained Highlights: No fundamental right of queer couples to marry, says Supreme Court
Opening for the petitioners, Senior Advocate Mukul Rohatgi argued that the right to marry for non-heterosexual couples is implicit in Articles 14 (Equality), 15 (Non-Discrimination), 16 (Equality of Opportunity in General Employment), 19 (Freedom of Speech), and 21 (Right to Life), especially after the SC rulings in ‘Navtej Singh Johar vs. Union of India’ (2018) decriminalising homosexuality by eye-catching off Section 377 IPC, and ‘KS Puttaswamy and Anr. vs. Union of India’ (2017), which upheld the fundamental right to privacy, respectively.
An LGBT flag at the Supreme Court, Delhi, India after the IPC Section 377 verdict of the Supreme Court in 2018. (Express Photo by Abhinav Saha)
However, themes like the inclusion of LGBTQIA+ couples in the Special Marriage Do (SMA), 1954, the Foreign Marriage Act, 1969, the minimum marriageable age of such couples, and the impact of such marriages on children were also discussed throughout the hearing.
Parag Mehta and Vaibhav Jain were married in Washington DC on January 19, 2017. On Rally 5, 2020, the couple attempted to register their marriage with the Consulate of India in New York Town. Nevertheless, they were denied.
The newlyweds contended that this denial was in dispel violation of India’s Constitution, which prohibits discrimination on the basis of sex. “After all, if I were a woman, Vaibhav would have been qualified to register our marriage without issue,” said Mehta in an email to GLAAD. Instead, they sued for redress and their case was eventually transferred from the Tall Court of Delhi to the Supreme Court of India along with dozens of other petitioners.
Finally, the courts contain come to a decision.
On Tuesday, India’s Supreme Court rejected pleas to legalize same-sex marriage, but affirms that citizens have the right to be in LGBTQ relationships without facing discrimination. While the court decided that the issue of same-sex marriage is up to the legislature and out of the scope of the judicial system, Leader Justice DY Chandrachud expressed that the right to opt one’s partner is one which “goes to the root of the right to life and liberty under Article 21 [of