LGBT means lesbian, gay, bisexual and transgender. Since ancient times they are subjected to undue harassment and discrimination. Due to anarchic laws and societal attitude, they are the victims of identity crisis. After law colleges admission in West Bengal, students are taught Section 377 of the Indian Penal Code,1860 (IPC). It says that if any person voluntarily has carnal intercourse against the order of nature with any man, woman or animal, he shall entail criminal liability i.e., imprisonment for life or imprisonment which may be extended to ten years as well as fine. As taught in law study in West Bengal, in a landmark judgment of Naz foundation v. Govt. of National Capital Territory of Delhi, the Delhi High Court held Section 377 of IPC unconstitutional in so far as it criminalizes consensual homosexual acts in private, as it is violative of Articles 14,15 and 21 of the Constitution of India.
This judgment was challenged in Supreme Court in Suresh Kumar Kaushal v. Naz Foundation. Honourable Supreme Court set aside the judgment of Delhi High Court in Naz Foundation case and held that Section 377 is constitutional. In the year 2017, the historical judgment of Justice K S Puttaswamy vs. Union of India, held that right to privacy is a fundamental right within the broader ambit of Article 21 of the Constitution of India. The final breakthrough came up in Navtej Singh Johar & Ors. v. Union of India judgment wherein Supreme Court held Section 377 of the IPC as unconstitutional to the extent it criminalizes consensual homosexual acts in private sphere of life. Supreme Court overturned its earlier judgment of Suresh Kumar Kaushal’s case. No one can be discriminated solely on the grounds of sexual orientation. Although, other forms of unnatural offences like sodomy and bestiality are still punishable under Section 377 of the IPC.
The judgment of Supreme Court of India decriminalized homosexual intercourse in private spheres of life but it did not recognize right to marriage of LGBT people’s. Although, right to marry has not been expressly mentioned in the Constitution of India. As taught in law study in West Bengal in Lata Singh v. State of Uttar Pradesh, honourable Supreme Court of India held that right to marriage is a fundamental right within the broad ambit of Article 21 of the Constitution of India. International Conventions like the Universal Declaration on Human Rights, 1948 recognizes right to marriage as a human right. The institution of marriage carries significant importance.
Marriage has many social and economic consequences. If two individuals get married, the state as well as the society recognizes such relationship. The parties to the marriage get entitled to certain rights. For e.g., one partner cannot simply walk away and marry someone else. There are certain pecuniary rights. The laws of inheritance recognize a married spouse and give him or her a share in the property of the other spouse. There is insurance as well as income tax benefits. The Indian society is conservative. After law colleges admission in West Bengal, students are taught that law is a dynamic concept. With time judicial separation and divorce have been introduced in the personal laws. Even marriage under Special Marriage Act, 1954 may be solemnised between two citizens of India or two foreigners or between a citizen and a foreigner irrespective of their faith, caste and religion. It’s a high time that the Parliament should take up the issue of legalisation of same sex marriage.
