Through the years, the LGBTQ+ community has been subjected to several genders and sexual identity prejudice. The queer community has gained constitutional recognition and social acceptance in several countries across the world. Marriage is considered to be an essential part of every person’s life and a fundamental right under Article 21[1]. Even the freedom to marry is treated as a basic human right that must be made available to everyone; this right is not extended to homosexual couples. While ‘normal’ heterosexual marriages are celebrated around the world, same-sex relationships and marriages are frowned upon and also criminalised in some countries. People condemn homosexuality as a ‘phase’ that would pass eventually whereas they fail to acknowledge and accept the reality of homosexuality. Homosexuality can be described as a form of sexual orientation which is mainly characterised by attraction toward people who are identified as belonging to the same sex.
In recent years there has been a surge in the number of activists demanding equality and equal rights with respect to marriage for homosexual couples. While a few countries have legally recognized same-sex relationships and marriages, many countries have retained statutory prohibitions on homosexual acts even after protests and criticisms. The past 2 decades have witnessed a considerable improvement in the status of same-sex relationships and marriages with respect to social acceptance and legal recognition in India.
HISTORY OF HOMOSEXUALITY IN INDIA –
Mentions of homosexuality and queer community can be found in ancient Hindu mythologies as well as Hindu texts wherein gender and sexuality were seen as a belief, an idea rather than an identity. Sculptures on the walls of ancient temples, sacred narratives and ancient books indicate the presence of homosexual relationships and unions. According to the Krittivasi Ramayan, King Bhagiratha, who is credited as the person responsible for bringing Ganga as a river on Earth, was mentioned to be born to two women who were widows of King Dilip. The sculptures on the Khajuraho temple in Madhya Pradesh depict intimate homosexual unions[2]. Furthermore, the Gods of water and ocean, Varuna and Mitra are considered to be a symbolism of intimacy and are often associated with the lunar phases of the moon, the waxing phase being Varuna and the waning phase being Mitra. They were also said to have 2 children via Urvashi, which resembled the process of surrogacy[3].The existence of same-sex unions was recognized in ancient India, regardless of the present debate regarding the social acceptance of sam- sex relationships and their legal validity.
The legal recognition of same-sex relationships can be traced back to the Manusmriti which disapproved of homosexual activities which were considered to be a punishable offence. Same-sex unions between women were fined and even punished by chopping their fingers off. Whereas, for the men involved in homosexual relationships or sex, the punishments were less severe. Another proof of the existence of homosexuality and its legal implications is the mentions found in the Arthashastra wherein it is clearly stated that it is the duty of the king to impose punishments on those who engage in homosexual acts. Certain Muslim sharia laws mention repercussions such as flogging for same-sex unions and the Quran considers the acts of homosexuality as the ‘Wrath of God’. The Bible also disapproves of any acts of homosexuality or carnal intercourse. The present laws on homosexual relationships were introduced by the British during the colonial period when same-sex intercourse was criminalised by the introduction of the Indian Penal Code in 1860. The IPC drafted by Lord Macaulay contained Section 377[4] that criminalised unnatural intercourse with imprisonment or fines. This was the first time codified laws on homosexual acts were introduced in India. It was after this period that India saw a change in the trajectory of same-sex relationships and marriages.
THE LEGALITY OF HOMOSEXUALITY IN INDIA –
The battle against the criminalisation of homosexuality began decades after Section 377 was criminalised. Years after the Indian Penal Code was passed, the first challenge regarding Section 377 arose in 1994. The AIDS Bhedbhav Virodhi Abhiyan (ABVA) NGO filed a petition in the Delhi High Court urging the court to decriminalise Section 377[5]. The NGO workers wanted to distribute free condoms among the inmates of the Tihar jail which was rejected by the then superintendent of the jail, Kiran Bedi on the grounds that this would encourage homosexual acts among the inmates. As a result, this petition was dismissed by the court in 2001. This was the first struggle against Section 377 and homosexuality.
The next milestone was the petition filed by the Naz foundation to decriminalise Section 377 as it is violative of Articles 14, 15, 19 and 21 of the Indian Constitution of India and demanded the legalisation of homosexuality. The Delhi High Court dismissed both the petition and the review petitions filed by the foundation after which in an appeal to the Supreme Court, the Delhi High Court was asked to reconsider its decision as the issue was related to the public interest and therefore should be entertained. The arguments presented by the Naz foundation stated that the fundamental rights of same-sex partners were at stake due to Section 377 which stripped them away of equality on the basis of sexual orientation as it narrowed the meaning of ‘sex’ and took into consideration only the gender and not the sexual orientation of a person was reconsidered by the court. Finally, in 2009 the Delhi High Court decriminalised section 377 allowing consensual sexual intercourse between people of the same sex[6]. But in the year 2013, the Supreme Court upheld the Constitutional validity of Section 377 and set aside the 2009 verdict upholding the constitutional validity of the section[7] stating that it was the duty of the Parliament to decide whether to amend or repeal the section and the intervention of the judiciary was not required.
There were mentions of homosexual relationships in the Justice K.S. Puttaswamy vs Union of India[8] case wherein the Supreme Court stated that sexual orientation was an essential component of identity. No legal action toward decriminalisation was taken until 2018. The landmark judgment of Navtej Singh Johar v.Union of India[9] overturned the previous 2013 judgment and finally decriminalised Section 377. Parts of Section 377 which includes intercourse with minors, non-consensual homosexual intercourse and bestiality remain in force and are punishable under the Act. Apart from Section 377, other legislations dealing with homosexuality are Section 292[10] and Section 294[11] of the Indian Penal Code which deals with obscenity and obscene behaviour in public respectively and also encompasses homosexuality under its ambit. This case granted legal recognition to homosexuality in India and held that criminalising consensual homosexual intercourse violated basic fundamental rights such as Articles 14, 19 and 21 of the Indian Constitution and presented strong arguments in favour of same-sex relationships.
LEGALITY OF SAME-SEX MARRIAGE IN INDIA –
While the decriminalisation of Section 377 recognised homosexual relationships in the country, the same has not been extended to same-sex marriage. In the light of the recent case of Abhijeet Iyer Mitra v. Union of India[12], the legal validity of same-sex marriage in India was brought to light. The fact of this case is related to the grant of the Overseas Citizenship of India (OCI) card to the spouse of the petitioner. Neither of the petitioners identified as heterosexual and had gotten married in New York before their return to India. The lawyers representing the petitioner argued that since they were overseas citizens, they would be governed under the Citizenship Act, 1955 the Foreign Marriage Act of 1969, and the Special Marriage Act of 1954. Neither of these Acts mandates marriage to be a heterosexual union. In fact, it was argued that these Acts mentioned ‘persons’ instead of man and woman and is gender neutral, and hence did not discriminate between heterosexual and homosexual marriages per se. In response to this, Tushar Mehta, the Solicitor General of India commented that as per the current standing of the Central Government, marriage is considered to be a union between a man and a woman and the term ‘spouse’ specifically refers to either a husband or a wife for a heterosexual couple.
The Centre argued that the decriminalisation of Section 377 does not necessarily grant same-sex couples the right to marry. Decriminalisation of consensual homosexual intercourse is intended to provide same-sex couples with the right to lead a dignified life and companionship as long as such a companionship does not violate others’ fundamental rights in society and is consensual. The ruling was to allow the right to privacy in a private domain to individuals and not to constitute a public right and legalise a certain form of human conduct in society by granting recognition to same-sex marriages. Furthermore, the Centre also stated that there is no acceptance of homosexual marriages or the union of same-sex couples either in the personal laws or the codified statutory laws. The judiciary could not intervene in the matter of legalising same-sex marriages as it was the Parliament that had the power and the duty to make laws, amend or repeal laws in the country. And since a society like India was majorly dependent on personal laws, societal and moral values to decide on matters relating to marriage, divorce, adoption, etc. legalising same-sex marriage would result in legal ramifications and violate the existing personal and codified laws that consider marriage to be a union of a man and woman with the purpose to procreate which biologically would not be possible in same-sex marriages. It would also violate the sanctity associated with the institution of marriage in the society due to which the Government disapproved of granting legal sanction to same-sex marriages in the country.
This decision of the Government was severely criticised across the country due to the Government’s decision to protect the customs and traditions of the Indian society over granting basic matrimonial rights to homosexual couples in the country. The Supreme Court has earlier recognized the choice of a partner whether within or outside marriage is exclusively an individual right under the liberty and autonomy every individual inherits through the Constitution[13]. While the courts have previously ruled that the right to marry is a basic right of every individual under Article 21 of the Indian Constitution, yet in this case, the Government disapproves of extending the same rights to homosexual couples in the country. The past submissions and arguments made by the Government are based on the belief that homosexual relationships and marriages cannot be equated to heterosexual marriages which necessarily require a biological man as a husband and a biological woman as a wife in a matrimonial relationship to facilitate procreation in order to bear children of their own. There were also debates on how heterosexual marriages would provide children with the requirements of both a mother and a father that homosexual marriage would not be able to provide, even though there are no proven facts as to whether heterosexual couples would make better parents than homosexual couples in the society. The Central Government has restricted the ambit of a ‘family’ to heterosexual unions by disapproving any advances towards granting matrimonial rights to homosexual couples in India stating that the Government has a legitimate interest in the institution of marriage practised in the country as it affects the society at large. The Government’s stance on same-sex marriage remains the same, i.e. the courts must refrain from legalising same-sex marriage in the country with the intention of protecting the social morality of the country. Same-sex marriages have still not been granted legal validity despite arguments on deprivation of civil, political and socio-economic rights as well as certain basic fundamental rights in the society.
ARGUMENTS ON SAME-SEX MARRIAGES –
While the arguments for same-sex relationships and marriages mainly deal with fundamental rights and ensuring civil and political rights, the arguments against same-sex marriage are mainly focused on the ‘order of nature’ which is considered to be the union of a man and a woman. The interpretation of the order of nature as heterosexual has undergone considerable change through the years. The arguments for the legalisation of same-sex marriage presented were the evolving needs of the society. The discrimination towards homosexuality has no rationale and is outdated. With the change in time, the society needs to evolve and legalising same-sex marriage was a step towards ensuring equality. Whereas the primary objection to the legalisation of same-sex marriage is that they cannot bear children of their own as the purpose of marriage since ancient times has been to procreate. It is based on the assumption that people get married to have children. Ironically, heterosexual couples who do not have children of their own are still considered to be legally married. There is no factual evidence as to whether heterosexual couples would be better parents compared to homosexual couples. These arguments presented against the legalisation of same-sex marriage are majorly based on traditional beliefs, customs, cultural heritage and societal morality. While there have been advancements in technology to address this issue of homosexual couples not being able to procreate, there have not been any advancements in the legalisation of same-sex marriage in the country. While the legalisation of same-sex marriage would result in gradual social acceptance and also ensure civil, political and socio-economic rights to homosexual couples, not granting legal recognition would just continue the discrimination and oppression homosexual couples have been subjected to for decades now.
CONCLUSION – Even today, homosexuality is a sore topic in several countries. Almost around 69 countries have criminalised homosexual relations even after protests and societal advancement throughout the years[14]. Same-sex marriages or relationships are not legalised in some countries even after their existence was proved through historical events and records. The people of the LGBTQ+ community suffer from prejudice and discrimination and are deprived of not just basic rights such as the freedom to marry, but also their civil and political rights are threatened, making legal recognition a need rather than a reform. Benefits of succession and maintenance extended to heterosexual couples are not made available to homosexual couples due to the lack of laws and legal recognition. The attitude of people towards homosexuality is now changing. The Madras High Court, in one of the recent judgements of harassment of a lesbian couple by police officers, ordered the state and officials to draw plans and introduce reforms to respect LGBT rights in order to eliminate the illegal discrimination against the LGBTQ+ community[15]. Furthermore, police officials were ordered to receive training and awareness to ensure the LGBTQ+ community is treated with respect. The LGBTQ+ community has been subjected to centuries of discrimination and oppression for their personal choice of life and expression of their sexual orientation. With the advancements in societal perception of homosexuality, they can now demand their rights in the society. Societal acceptance and legal recognition go hand in hand. Where there is an issue of societal acceptance, legal recognition should take the lead and introduce reforms and vice versa. Only then would the society progress with time. With the changes in political structure, time, technological advancements and societal structures, people are slowly starting to accept same-sex relationships. We still have a long way to go to achieve equality and secure the rights of the LGBTQ+ community.
[1] Article 21, The Constitution of India, 1950.
[2] Devdutt Pattanaik, Did Homosexuality exist in ancient India?, (30th June, 2009), https://devdutt.com/articles/did-homosexuality-exist-in-ancient-india/.
[3] Kavita Kane, Storytelling: LGBT themes in Hindu mythology, The Indian Express, (July 14, 2020 10:42:18 am), https://indianexpress.com/article/parenting/blog/storytelling-lgbt-themes-in-hindu-mythology-5273332/.
[4] Section 377, The Indian Penal Code, 1860, No.45, Acts of Parliament, 1860 (India).
[5] AIDS Bhedbhav Virodhi Andolan vs. Union of India, Civil Writ Petition No. 1784 of 1994.
[6] Naz Foundation v. Government of NCT of Delhi, (2009) 160 DLT 277.
[7] Suresh Kumar Koushal v. Naz Foundation, (2014) 1SCC 97, 54.
[8] Justice K.S. Puttaswamy vs Union of India, (2017) 10 SCC 1.
[9] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
[10] Section 292, The Indian Penal Code, 1860, No.45, Acts of Parliament, 1860 (India).
[11] Id, Section 294.
[12] Abhijeet Iyer Mitra v. Union of India, W.P.(C) 6371/2020.
[13] Shafin Jahan vs. Asokan K.M. and Ors., (2018) 16 SCC 368.
[14] Daniele Paletta, Ilga World Updates State-Sponsored Homophobia Report: “There’s Progress In Times Of Uncertainty”, Ilga, (12/15/2020 – 08:03), https://ilga.org/ilga-world-releases-state-sponsored-homophobia-December-2020-update.
[15] Sudarshan Varadhan, Indian court calls for sweeping reforms to respect LGBT rights, (June 7, 2021 9:26 pm), https://www.reuters.com/world/india/indian-court-calls-sweeping-reforms-respect-lgbt-rights-2021-06-07/.
Author: Nidhi D Murthy
Juris Centre 