LGBTQ CASES – POLITY
News: Ready
to play facilitator to push govt. to ease concerns of same-sex partners'
What's in the news?
● The
Supreme Court said it is ready to play
role of a "facilitator" to push the government into taking
administrative steps to bring down
"barriers" and ease the day-to-day human concerns faced by
co-habiting same-sex partners in areas such as joint banking, insurance and
admissions of children to schools without touching upon the issue of legal
recognition of same-sex marriage.
Key takeaways:
● The
Special Marriage Act of 1954 (SMA)
was passed by the Parliament governs a
civil marriage where the state sanctions the marriage rather than the religion.
● Issues of personal law
such as marriage, divorce, adoption are governed by religious laws that are
codified. These laws, such as the Muslim Marriage
Act, 1954, and the Hindu Marriage Act, 1955, require either spouse to convert
to the religion of the other before marriage.
● However,
the SMA enables marriage between inter-faith or inter-caste couples without
them giving up their religious identity or resorting to conversion.
● The
Indian system, where both civil and religious marriages are recognized, is
similar to the laws in the UK’s Marriage Act of 1949. An earlier version of the
SMA was enacted in 1872 and was later re-enacted in 1954 with provisions for
divorce etc.
Key Cases related to LGBTQ:
|
Case |
Judgement/Ruling
|
|
NALSA v Union of
India |
Months
after a two-judge Bench of the Supreme Court in ‘Suresh Koushal v Union of
India’ upheld the constitutional validity of Section 377 of the Indian Penal
Code, another Bench in April 2014 affirmed
the constitutional rights of transgender persons under Articles 14, 15, 19
and 21 of the Constitution.
In
‘NALSA’, the Court agreed with virtually the same arguments it rejected in
Suresh Koushal. The court upheld the right of transgender persons to decide
their gender and directed the Centre and state governments to grant legal
recognition to their gender identity, such as male, female or the third
gender. |
|
KS Puttaswamy v Union of India |
In
2017, a nine-judge Bench of the Supreme Court unanimously recognized the right to privacy as a
fundamental right under the Constitution.
In
doing so, the verdict overruled a “discordant note which directly bears upon
the evolution of the constitutional jurisprudence on the right to privacy” -
the 2013 ‘Suresh Koushal’ ruling.
|
|
Shafin Jahan v Union of India |
The
SC in March 2018 set aside a Kerala High Court judgment that annulled the
marriage of a 24-year-old woman who converted to Islam and married a man of
her choice. The ruling recognized the right
to choose one’s partner as a facet of the fundamental right to liberty and
dignity.
|
|
Shakti Vahini v Union of India |
A
three-judge Bench of the SC in March 2018 issued directives to prevent honour killings at the behest of
khap panchayats and protect persons who marry without the approval of the
panchayats. In the ruling, the Court recognized the right to choose a
life partner as a fundamental right.
|
|
Navtej Singh Johar v Union of India |
In
August 2018, the SC heard a curative petition against the ‘Koushal’ ruling. A
five-judge Constitution Bench struck down IPC Section 377 to the extent that
it criminalized homosexuality. The ‘Navtej’ ruling essentially said that the LGBTQ community are equal citizens and
underlined that there cannot be discrimination in law based on sexual
orientation and gender. |
|
Deepika Singh vs Central Administrative Tribunal |
The
SC in August last year decided in favour of a woman who was denied maternity
leave for her first biological child on the ground that she had already
availed the benefit for her two non-biological children. The ruling recognized
“atypical” families, including queer marriages, which could not be confined
in the traditional parenting roles. |