October 19, 2021

Homosexuality and Same-Sex Marriage

Family law

“Love him and let him love you. Do you think anything else under heaven really matters?”

                                                                                                                        – James Baldwin

Keywords – Same-sex marriage, LQBTQIA, Homosexuality, Section 377 of Indian Penal Code, Article 14, 15, 16 of The Constitution of India, Discrimination.

Introduction

There are so many complex issues for society to deal with. Out of the many issues, Homosexuality and same-sex marriage is one of them the society is still struggling to accept. When we talk about Homosexuality and same-sex marriage it means a marriage or relationship between two female-female or male-male. Should Homosexuality and same-sex marriage fall under Human Rights or Human Wrong? We human beings have been guided by various laws, we have the privilege of several Human Rights but at the same time, there are rights that are not fully accepted by the law itself. Marriage is a term of celebration to Commitment. Marriage is considered as a sacrament, the union of two souls which is classified as love and arrange. A married couple or legally accepted couple has been given several rights in the society like right to Adoption and Custody, right to divorce, right to abortion, right to inherit spouse’s property upon death and etc. But as per law no such rights have been provided to a couple of Homosexual and same-sex marriage. The community is known as LGBTQIA (an acronym for lesbian, gay, bisexual, transgender and queer or questioning) these terms are used to describe a person’s sexual orientation or gender identity. James Baldwin, a gay author gave a powerful statement about love. He said that sex and gender doesn’t matter; if both genuinely love each other. Nothing should stop them if they have love in their hearts. These words resonate with millions of people who feel their emotions were invalid because of the gender of the object of their love. Baldwin assured that it doesn’t matter because love is love. Same-sex marriage gave hope to the other people that they can have a future. In addition to this it paves a broader and brighter path for the LGBTQ community.

The community has already suffered enough due to discrimination. All they deserve is to marry whomever they wish irrespective of gender or sex.  Homosexuality and same -sex marriage are seen as taboo in the Indian Society. In India  people  refrain  from  talking  about  homosexuality,  but,  in   the recent  years peoples  attitude  towards homosexuality has shifted slightly. Several media and News channels, Actors, Social Media influencers are coming out on its support and speaking about them and the rights. Getting a Legal recognition on the samesex marriage is very important in India. The communityof LGBTQ is   often    subjected   to   violence, abuses and discrimination.  People easily take advantage of them as they don’t have  no  strict  law  in  the  country  to protect   their   rights.  

History

Our religion plays an important role in shaping our customs and traditions. Rig-Veda says Vikriti Evam Prakriti which means “what seems unnatural is also natural” as per some scholars they consider as homosexual/transsexual dimensions of human life is like all forms of universal diversities. In Arthashastra[1] the ancient Indian treatise on statecraft mentions a wide range of sexual practices which were whether performed with a man or a woman which was sought to be punished with lowest grade of fine. While homosexual intercourse was not sanctioned, it was treated as very minor offense and heterosexual intercourse were punished more severely.

Sex within two non-virgin women was incurred with a small fine, while the homosexual intercourse within two men could be made up for merely a bath with one’s clothes on, and atonement of having the five products of the cow and keeping a one-night fast. Devdutt Pattanaik an Indian mythologist, speaker, illustrator and author who is known for his writing on Hindu sacred lore said Homosexual in Hindu was in existence but not acknowledged. An American researcher Alfred Kinsey reported that homosexual activities were a very frequent pattern in adolescence, among both males and females.  In the Kinsey report of 1948 found that 30 percent of adult American males among Kinsey’s subjects had engaged in some homosexual activity and 10 percent reported their sexual practice has been exclusively homosexual for a period of at least three years from the ages of 16 to 55[2]

Under the Mughal rule, the practice of Homosexuality grew more common with the sultans of the Delhi Sultanate themselves established relationships with men despite the prohibitions against it in Sharia[3]. In the year 1977 Shakuntala Devi published the first study of homosexuality in India. While listing the convictions under Section 377 was rare, with no convictions were there  for homosexual intercourse in the twenty years to 2009,the Human Rights Watch have said that the laws was used to harass the HIV/AIDS prevention activists, as wellas sex workers, men having sex with men, and other LGBT groups. 

The group documents arrests in Lucknow of four men in 2006 and another fourin 2001.The last 200 years there’s an increasing number of countries have decriminalised relationships of same-sex. After criminalisation before the French Revolution in 1789 the trend towards decriminalisation gathered pace – particularly in the years of 1960s and 1970s.

Homosexuality in India

Acceptance is the key led a better life. Earlier the term same-sex relationship or marriage wasn’t given much importance. Hence, no one even dared to open up about their feelings and sexuality. Our generation is more Fierce, strong and brave who beautifully express their needs and feeling to the world.  We have seen several cases where the male or the female were forced to get married because for the family it’s a big shame to accept their children as Homo sexual. The key points of Marriage are love, trust, loyalty and live long commitment, if someone finds all of these in partner of their same sex it should not be considered as a big issue. It makes me feel so happy that after a long battle the LQBTQIA community has finally started to get acceptance in the eye of law as well.

Recently Justice N Anand Venkatesh said that the change should take place at a societal level, when it’s complemented by law there would be a remarkable change in the outlook of society[4]. Love and the bond between LGBTQIA+ persons are pure, legitimate and real as that experienced and shared by cis heterosexual person. Justice N Anand Venkatesh of the Madras High Court held while seeking Constitutional institutions to remove prejudices and ensure that the community is brought into the mainstream[5].

 The Madras High Court also added that there should be no medical Cure or change to the sexual orientation of the LQBTQIA to heterosexual or transgender people to cisgender. In the ancient Indian text of Kama sutra written by Vatsyayana dedicates a whole chapter on erotic homosexual behaviour. Our historical literary is evidence that homosexuality has been prevalent to the Indian subcontinent throughout history and homosexuals were not necessarily to be considered as inferior in any way.

In 2012 the government of India submitted a figure of demographics for the LGBT to The Supreme Court which said there were about 2.5 million gay people recorded in India. These figures were completely based on individuals who have self-declared themselves to the Ministry of Health. There must be much higher statistics that may have concealed their identity as they still fear of discrimination. The community goes through a lot Mental, physical and emotionally as there is lack of acceptance from families, friends, relatives and police.

The Legal Status

The community has been fighting a lot ever since for the identification of their relation and group in the eye of law. Homosexual intercourse was said as a criminal offence from the introduction of Section 377[6] of Indian Penal Code. The Delhi High Court on 2009 decision in the case of Naz Foundation Vs. Govt. of NCT Delhi, the court’s ruling was overturned in 2013 making homosexual intercourse re-criminalize until the Supreme Court of India’s 2018 ruling in the case of Navtej Singh Johar vs. Union of India it an offence for a person to voluntarily have “carnal intercourse against the order of nature.” 

Coming to The legal status of individuals in same-sex relationships depends on where they live. At the hand of the spectrum there are countries that punishes homosexuality with death penalty like  Iran, Mauritania, Saudi Arabia, Sudan and Yemen and in parts of Nigeria and Somalia. In the other side, there are countries where the gay couples have same marriage rights as heterosexual couples.

On 24th August, 2017 the Supreme Court of India gave the country’s LGBT community the freedom to express their sexual orientation. Which means an individual’s sexual orientation is nicely protected under the Right to Privacy law of the country. However, the court did not directly overturn any laws criminalizing the relationship of same-sex[7].  The Supreme Court of India legalised consensual gay sex on 6th September of 2018[8].

Hindu organisations based in India and abroad supported the decriminalisation of homosexual behaviours. In the year 2009, the Hindu Council UK became the first major religious organisations to support the community of LGBT rights when they had issued a statement of “Hinduism does not condemn homosexuality”[9]. Sri Sri Ravi Shankar, a very prominent Hindu spiritual leader condemned that sec 377 in a series of tweets on maintaining that “Hinduism has never considered homosexuality a crime” and “to brand a person a criminal based on sexual preference would be absurd”[10] . On July 2014, a book of LGBTQIA and gender queer rights was published by Srishti Madurai and was released by Vanathi Srinivasan, the General Secretary of the BJP in Tamil Nadu. This move was considered very encouraging by members of the LGBTQIA community.

On 18th December, 2015 a member of the Indian National Congress, Shashi Tharoor introduced in a Private member Bill for the decriminalisation of Section 377 of IPC in the Lok Sabha but it was rejected by the house of a vote on 71–24 with one abstention. On 12th March 2016 Shashi Tharoor again introduced the bill in Private member Bill but once again it was defeated by a division of 58–14 with one abstention.

On 24 August, 2016 a draft for ban on the commercial surrogacy was cleared by the Union Cabinet which was announced by Shushma Swaraj. It denied the bill of  homosexuals on having surrogate children, with this she stated “We do not recognise live-in and homosexual relationships ,this is against our ethos”[11] .The Supreme Court on 24 August, 2017 upheld that the right to individual privacy is an intrinsic and the fundamental right under the constitution of India. The nine-judge bench held that “sexual orientation is an essential attribute of privacy”. It was also noted that, “Discrimination against any individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of any individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution.”[12]

 The Hon’ble Supreme Court on 10th July, 2018 upholded the importance on the rights of the LGBT community through Justice D. Y. Chandrachud it was said in the proceedings of the court that choosing a Partner is every person’s Fundamental Right. The Supreme Court on 2018 took down section 377, a British-era provision of criminalising consensual homosexual activities. The apex court upheld on this that other aspects of section 377 of IPC, criminalising unnatural sex with any minor and animals will remain in force.

By changing time the community has started getting some attention in the eye of law. Recently, Justice N Anand Venkatesh passed an interim order in response of a petition filed by two young women with same sex orientation.  In an unprecedented move he decided to undergo a psycho-education session before penning a judgment on same sex relationships. After the session he clearly stated at his judgment that the responsibility to change, the burden of un learning stigma and learning about the live experience of the queer community lies on the society, not on the queer individuals.

On 7th June, 2021 while delivering the verdict on the case of S Sushma v. Commissioner of Police, Justice N Anand Venkatesh   prohibited the Conversion Therapy in Tamil Nadu and Puducherry. On this he suggested comprehensive measures on sensitizing the society and various branches of the State which include the Police and judiciary to remove such prejudices against the LGBTQIA+ community. He also suggested that changes be made on the curricula of schools and universities to educate the students on understanding the LGBTQIA+ community. This was a big step taken ever wholeheartedly on accepting the Community and giving them th rights they Deserve as per law.

 Judgements that Paved the Way for LGBTQIA Rights in India

  • Naz Foundation v Government of NCT Delhi or popularly known as Naz Judgement is a 2009 judgement of the Delhi High Court. In the judgement for the first time Delhi High Court declared Section 377 of IPC to be unconstitutional.

Naz an NGO based on Delhi filed a Public Interest Litigation (PIL) at the Delhi High Court who claimed Section 377 of the IPC to be unconstitutional. They were at the forefront in the battle of decriminalisation the Section. In 2009, the Courts finally declared Section 377 to be unconstitutional which violates Article 14, 15 and 16 of the Indian Constitution.

  • NALSA Judgement, 2014 – It  was a very dark year for the rights in India in general and the LGBTQIA rights in particular as the Supreme Court of India delivered in  Suresh Kumar Koushal vs. Union of India ,homosexuality was re-criminalized. It was short time darkness because in the case of National Legal Services Authority vs Union of India or NALSA judgement was delivered by the Supreme Court. For the first time in the history, Transgender people were given recognition as the citizens of this country and all the Fundamental Rights were extended to them which gave them the identity of Third Gender. This case still continues to be the landmark case for Transgender Rights in this country.

The court laid comprehensive set of guidelines saying, every State must follow to bring Transgenders into the public spheres and provide remedies for their marginalisation.

  • Puttaswamy Judgement, 2017-This case is popularly known as integral judgement, it held the Right to Privacy to be integral. Article 21 of The Constitution of India which grants us Right to Life and Liberty was expanded to include Right to Privacy. Right to Privacy was extended to every individual irrespective of the gender and sex. Hence, the judgement along with NALSA judgement became one of  the pre-cursor on reading down of Section 377 in 2018.
  • Navtej Singh Johar v Union of India– It is the seminal judgement which decriminalized homosexuality in India .On this judgement by the Supreme Court of India is a result of multiple Public Interest Litigations ( PIL) that have been filed by different groups of the LGBTQIA community. On this the Bench struck down Section 377 of IPC  to the extent that it criminalized sex between two consenting adults.

 The Supreme Court further held on this that Section 377 of IPC violates Article 14, 15, 16 and 19 1 (a) of  The Constitution of India. It also recognized that every individual irrespective of the gender identity and their sexual orientation should have the right to live with dignity, autonomy and made personal and private without the State interference.

  • Arun Kumar v Inspector General of Registration, Tamil Nadu – In this the Madras High Court, reads into the category of brides to include the transwomens. Under The Hindu Marriage Act, 1955 on the definition of marriage which only includes men and women .Through this judgement it expanded the category of women to include the transgender people to be identified as women to be brides as well.

Conclusion

Marriage is a union between two individuals and it also brings two families together. The real challenge for today is to make same-sex marriage legal in India, which still feels like a distant dream. The homosexuals are being the victims of violence, abuses, harassment, discrimination and mockery every now and then. It’s the need of hour to protect them by law.  Just legalizing same sex relationship is not enough.

There has to be legal recognition to same-sex relationship so they can enjoy their legal rights as other normal citizens of the country. This is just the first step. Love comes in all forms. It’s wrong to say that a person cannot marry the one they want just because they are not from the opposite sex. The battle of equality, recognition and citizenship for queer bodies has been a long and still on-going process. However, our judicial recognition to address these rights which provide remedies matters for the project of equality. There is still a long way to go. We need more reputed people like Justice N Anand Venkatesh   who have tried to learn about the community in depth and have created a big change for the society. Also, the families have to accept their child by their whole heart as it doesn’t makes them any less of a Human. It takes a lot of courage to come up with self-identification and families should understand the matter and help their children to face the world confidently. And we still have a long way to go on giving this community their right position in the Legal System.


[1] Arthashastra – Wikipedia

[2] https://www.britannica.com/topic/homosexuality

[3] Islamic law, or Sharia law, is a religious law forming part of the Islamic tradition

[4] LGBTQIA : Madras HC Judge Justice Anand Venkatesh Explains How He Overcame Prejudice (livelaw.in)

[5] Judge supports LGBTQIA+ love post counselling, seeks better awareness – DTNext.in

[6]  Section 377 of the Indian Penal Code states “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished”. This was a colonial-era law that was at odds with modern notions of justice and equality of all humankind.

[7] “India Declares Freedom of Sexual Orientation A Fundamental Right”

[8] “SC decriminalises homosexuality, says history owes LGBTQ community an apology”

[9] ‘Hinduism does not condemn homosexuality’ – Rediff.com India News

[10] Homosexuality not a crime in Hinduism, says Sri Sri Ravi Shankar-India News , Firstpost

[11] India proposes commercial surrogacy ban; live-ins, homosexuals worst hit | Latest News India – Hindustan Times

[12] India’s Supreme Court Has Ruled That Sexual Orientation Is A Fundamental Privacy Right | The Mary Sue

Author- Muskan Saha (The ICFAI University, Dehradun)

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