The Prayas ePathshala

Exams आसान है !

About LGBTIQ+:

Lesbian, gay, bisexual, transgender, and queer, or questioning, is referred to as LGBTQ.
These phrases are used to characterise a person’s gender identity or sexual orientation.

Challenges the LGBTIQ+ Community Faces:

Commissioner of Police v. Sushma:

It imagines giving them rights and safeguards against abuse and harassment, as well as against discrimination in housing, work, and social integration.
This is to be implemented by the State government.

Supriyo Decision:

The right to marry is not a basic one.
When it comes to the issue of civil unions, the perspectives of the majority and minority disagree.
The minority supported acknowledging a wide range of rights.
It did not resolve the issue by outlining rights and providing precise instructions.
Most gave up and left same-sex couples at the mercy of the legislature and the administration.
As the Supreme Court has ruled that statute, e. It is not possible to utilise the marriage laws or the Constitution.

Problems with the ruling:

The indirect discrimination concept states that the discriminator cannot use the intent or object to get out of their constitutional obligations.
The court has to consider how the law affects a certain group of people (Nitisha v. Union of India, 2021).
The mere lack of legislation does not prove discrimination; rather, it misunderstands the essence of the problem.
The state has decided not to recognise a particular set of marriages based only on sexual orientation.
The Bench does not specifically address this.
“The Court cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations” is the problem that is not addressed.
Even in the event that a statute were blatantly unlawful, the court held.
If shaping the relief proves to be challenging, that alone should be sufficient justification for keeping the unlawful statute in place.

What actions are necessary?

Parliament can evade constitutional scrutiny by crafting legislation that necessitates a convoluted process of interpretation on the part of the court.
It is challenging to think of the equal rights issue around marriage as solely a legislative matter.
This wouldn’t equate to the establishment of a brand-new marriage law institution.

To register such a contract, one would need to do the following:

People who are in relationships in the community will be able to receive the State’s approval and, to a large extent
As a result, their standing in society will improve.
They will be shielded so they can live in society without fear of harassment or disturbance.
The state government could pass laws establishing the institution of civil unions and provide same-sex couples this status.
The Concurrent List, which is part of the Seventh Schedule to the Constitution, contains additional laws pertaining to marriage, divorce, inheritance, succession, minors, adoption, and other topics. This gives the State the authority to enact laws on these topics.

Laws pertaining to judges:

In Visakha v. State of Rajasthan (1997), the court established comprehensive rules governing the handling of sexual harassment accusations by establishments.
The court in NALSA (2014) ordered the safety of transgender people to be prioritised as well as the acknowledgement of their rights as “third gender persons.”

How were the rights of the LGBTQ community in India restored?

In the Navtej Singh (2018) case, the Supreme Court struck down Section 377 of the IPC and legalised consensual sex.
Article 14: It established an irrational categorization for individuals of the same sex under Article 14.
Article 21: Violation of the right to physical autonomy.
Article 15: Article 15 was violated by any classification that supported stereotypes.
Both positive and negative duties on the part of the state were associated with sexual orientation.
In NALSA (2014), the Court recognised the significance of the successive rights (e.g., equal civil and citizenship rights, employment, health care, and education) resulting from “gender identity.”

The 1954 Special Marriage Act:

SMA 1954:

Tamil Nadu has a reputation for being progressive, and now the state may further establish itself as a trailblazer by recognising and upholding the fundamental values of social justice, equality, and self-respect.
The injunction goes against the terrible Supreme Court ruling that, more than anything else, completely destroyed LGBTQIA community members’ expectations for equality and equal treatment under the law.
The United States Supreme Court declined to rule in Baker v. Nelson (1971) that same-sex marriage is protected by the Constitution.
It makes no difference if proponents of same-sex marriage have momentum in the political process right now or not.