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Hodges is relevant, where it was held that same-sex marriage was a legal consequence of the fundamental right to marry a person of choice canonised in Loving v. The reasoning of the Supreme Court of the United States (SCOTUS) in the case of Obergefell v. Thus, the judgment can lead to the recognition of same-sex marriages only through the Special Marriages Act, 1954 which is the secular marriage law in India. Marriage, adoption and inheritance are governed by personal laws in India, and the test of fundamental rights applies only to the secular laws governing these subjects. In the same vein the decision in Navtej Singh Johar could well pave the way for the legalisation of gay marriage in India. Indian legal scholar Upendra Baxi said prior to the judgment that these issues would be decided case by case depending on what the Supreme Court decides on Section 377.
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It must be noted that the judgment did not delve into questions of marriage, adoption or inheritance. Earlier this year, however, this direction was changed the grounds mentioned above were replaced simply with the words “without any discrimination”. In 2011 the Indian government issued a direction to businesses requiring them to “provide and maintain equal opportunities at the time of recruitment as well as during the course of employment irrespective of caste, creed, gender, race, religion, disability or sexual orientation”.
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While it is only the state that falls within the purview of Article 15, it will be interesting to see what the Supreme Court decides when it is seized of a matter involving discrimination by a private entity. The overarching provision that governs discrimination in India is Article 15 of the Indian Constitution which states, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.” Extending this provision to include the ground of sexual orientation, Justice Indu Malhotra remarked, “The LGBT community is a sexual minority which has suffered from unjustified and unwarranted hostile discrimination and is equally entitled to the protection afforded by Article 15.” In concluding their judgment Chief Justice Misra and Justice Khanwilkar declared, “Any discrimination on the basis of one’s sexual orientation would entail a violation of the fundamental right to the freedom of expression.” Justice Chandrachud remarked, “The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behavior are intrinsic to the constitutional protection of sexual orientation.” Here are some developments that may result in the laws regarding marriage and discrimination in India. Regardless, the judgment has far-reaching implications on the issue of discrimination and the legality of gay marriage. While the bench discussed various judgments of constitutional courts abroad which legalised gay marriage, they refrained from ruling on whether gay marriage had legal recognition in India. Its reasoning was multifarious of which the most pertinent was the violation of an individual’s right to privacy as a result of Section 377.īut it is significant to note that the bench presiding over the matter did not confine its ruling to Section 377’s unconstitutionality, but also ruled on the issue of discrimination faced by LGBT persons in India.
#FAMOUS GAY MEN AGAINST ADOPTION CODE#
Union of India declared unconstitutional Section 377 of the Indian Penal Code which criminalised sex against the “order of nature” to the extent that it prohibited sexual relations between consenting adults belonging to the same gender. The Supreme Court on Septemin the case of Navtej Singh Johar v.