Should same sex marriage be legalised in India 2

In the Naz Foundation v. Government of NCT of Delhi and others, It is argued that the Delhi High Court in Naz Foundation (supra) has  referred  to  and  analysed  the  concept  of  const.al  morality and ultimately struck down § 377 IPC clearly stating that carnal intercourse  between  homosexuals  and  heterosexuals  with  consent cannot be an offence and in the recent judgement of Navtej Singh Johar § 377 had been decriminalised, Then why not recognise same sex marriage. . In the recent case of Lawrence v. Texas, the Supreme Court of the United States, overruling its previous judgment in Bowers v. Hardick, followed a similar stream of reasoning to conclude that Texas anti-sodomy law solely targeted the homosexual community, and thus violated the substantive due process required under right to equality. Sexual preference is as personal to an individual as his/her sense of liberty in practising a religion and choice of food. Therefore, a legislation that differentiates between individuals on the basis of their preference of sexual conduct permeates class legislation aimed at marginalising the society, to the disfavour of the homosexual community. As observed in Shelley v. Kraemer, “Equal protection of the laws is not achieved through indiscriminate imposition of inequalities”. Article 15 prevents the State from discriminating against any citizen only on the grounds of sex, religion, race, caste, or place of birth. In the Navtej Johar Case, the Supreme Court moved away from this narrow view and held that any ground of discrimination, whether direct or indirect, which is founded on a particular understanding of the role of the sex, constitutes discrimination under Article 15. This way, the Supreme Court expanded the prohibited grounds of discrimination under Article 15 to include sexual orientation. The Court answered the question in the affirmative, referring to the International Covenant on Civil and Political Rights and its interpretation in the case of Toonen v. Australia.

Transgenders have faced the wrath of the authorities the most, owing to the lack of appreciation of the sex-gender dichotomy by the authorities. Same sex marriage  satisfy the Compelling State Interest Test. The state interest must be legitimate and relevant for a legislation to be non-arbitrary and must be proportionate to achieve the state’s interest. A law infringing a fundamental privacy right must satisfy the compelling state interest test i.e. it was held in Gobind v. State of M.P  that privacy claims deserve to be examined with care and to be denied only when an important countervailing interest is shown to be superior, or where a compelling state interest is shown. A law infringing a fundamental privacy right must satisfy the compelling state interest test i.e., whether the state interest is of such paramount interest as would justify an infringement of the right. The legal recognition of same sex marriage satisfy the compelling state interest as it will help in stable population. Couples will adopt children which will not only help in stable population, but also help the government in giving stable home to the orphans.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

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