A strong case exists for marriage equality

#GS-02 Social Justice

Navtej Singh Johar v. Union of India:

Navtej Singh Johar vs. Union of India is a landmark case in which Supreme Court decriminalized consensual homosexuality under IPC section 377
Supreme Court revised the decision it gave in Suresh Kumar Koushal v. Naz Foundation (2013) case where it held that Section 377 did not suffer from any “constitutional infirmity”.

Yogyakarta Principles were created by a group of international human rights experts in Yogyakarta, Indonesia in 2006 .
It aims to outline a set of international principles relating to sexual orientation and gender identity.
Supreme Court in the Navtej Singh Johar case stated that there is a need to apply ‘Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity’ as a part of Indian law.

LGBTQ+ community needs to differentiate between ‘right to privacy’ and ‘right to equality’ in their arguments for marriage rights.
In the former, a person’s sexual orientation and choice of a sexual partner are held intrinsic to privacy and personal liberty.
While in the latter, equal treatment of same–sex couples with heterosexual couples is considered paramount.
This makes a difference since the privacy argument calls for a complete ‘hands-off’ approach from the state in a person’s private sphere, the equality argument requires the state to take positive measures to ensure equal treatment in all spheres of life.

In Dudgeon vs UK (1981) the European Court of Human Rights struck down Section 11 of the Criminal Law Amendment Act 1885 (criminalises male homosexual acts in England, Wales and Northern Ireland) because it disproportionately restricted personal and family life.
The court adopted a privacy based approach and did not go into the question of equality of treatment.
Thus in Oliari vs Italy, the same sex couple failed to get marriage rights in Italy since the court reasoned that states could not be obligated to grant marriage equality, provided there was some form of legal recognition of their rights.
Meanwhile in South Africa LGBTQ+ community litigated rights based on ‘equality’ gained constitutional protection of ‘sexual orientation’ and judicial recognition of marriage, adoption, etc.
However, the US decriminalised same-sex relations in Lawrence vs Texas (2003) and granted marriage equality in Obergefell v. Hodges (2015) under the due process clause.
The due process clause prohibits the state from taking away personal liberties without substantive and procedural fairness.