Supremacy of the Constitution and International obligations...

Paving the Way for Inclusivity and Equality in Same-Sex Marriage

The recognition of same-sex marriage is a critical issue that requires a comprehensive examination of constitutional supremacy, personal laws, and the rights of individuals. In India, a diverse and pluralistic society, the question of legalizing samesex marriage necessitates a careful analysis of constitutional principles and the need for reform in personal laws. This essay delves into the implications of recognizing samesex marriage in India, emphasizing the supremacy of the Constitution, the imperative for changes in personal laws, and the delicate balance between religious beliefs and individual rights. In recent years there has been growing global conversation regarding the recognition of same sex marriage and the protection of LGBTQ+ rights. While international laws and principles are not directly enforceable in India’s domestic legal system, They can be used as persuasive arguments in legal and policy discussions within the country, influencing the development of laws and policies at national level. While the constitution of India provides a solid foundation for equality and non discrimination, It is essential to navigate the complexities that arise when reconciling religious views with the constitutional principles of Justice, liberty and Equality. India may not currently recognize same sex marriage, legal amendments and inclusive dialogue can play a significant role in addressing the rights of LGBTQ+ individuals with in these religious communities, ensuring their equal treatment under the law while respecting religious sensitivities.

Supremacy of the Constituion
The Constitution of India serves as the fundamental law of the land, providing a framework for governance, fundamental rights and the promotion of social justice. It upholds the principles of equality before laws, non discrimination and individual freedoms. The Constituion places the rights and duties and well being of its citizens at the fore front, setting the stage for progress and inclusivity.

International laws and India’s obligations
As a member of the global society. India is bound by various international human rights treaties and conventions that promote equality and non discrimination. Although specific obligations may vary depending on the treaties ratified, several international instruments support the recognition of same sex marriage, including:

Universal Declaration of Human Rights (UDHR)
The UDHR sets forth fundamental human rights standards and proclaims the principle of equity and non discrimination.

Internationl Covenant on Civil and Political Rights (ICCPR)
India is signatory to the ICCPR, which upholds the right to equality before the law, freedom from discrimination, and the right to marry and found a family. These provisions can be interpreted to support the rights of same sex couples to marry and enjoy equal legal recognition and benefits.

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW)
While primarily focused on gender equality and women’s rights, CEDAW recognizes that discrimination based on sex includes discrimination based on sexual orientation. The convetion calls for the elimination of all forms of discrimination against women, Which can be applied to same sex couples.

Recognition by Supreme Court
These judgments have set important precedents for the protection & promotion of LGBT+ rights in India, emphasizing equality, non-discrimination, right to live with dignity.

Transgender Rights
In 2014, the Supreme Court of India passed a significant judgment in the case of NALSA v. Union of India. The court recognized transgender people as a third gender and upheld their rights to self-identification. It recognized rights of transgender individuals to equality, non-discrimination, and protection under various provisions of Indian Constitution.

The NALSA judgment further affirmed the rights of transgender individuals to access healthcare, education, and employment opportunities without facing discrimination.

Section 377 of the IPC
Section 377 of the Indian Penal Code criminalized “unnatural offenses” and was used to target consensual same-sex relationships. In 2018, the Supreme Court of India delivered a landmark judgment in Navtej Singh Johar v. Union of India, declaring Section 377 unconstitutional to the extent that it applied to consensual sexual acts between adults, including same-sex relationships.

THE VIEWS EXPRESSED BY THE AUTHOR ARE PERSONAL

Ad. Abhishek Singh The writer is a Research Scholar