ABSTRACT
Marriages between people who are the same gender are referred to as same-sex marriages. Despite continuous efforts to acknowledge and legalize them, same-sex marriages are nonetheless illegal in India. This subject is significant because it touches on the acknowledgement and defense of LGBTQ+ people’s relationships as well as their fundamental human rights. Legalizing same-sex unions will benefit LGBTQ+ couples by giving them legal protection and recognition, as well as by fostering greater societal acceptance and lowering prejudice against the group. It is a significant issue for global LGBTQ+ rights activists and supporters, and its relevance goes beyond the legal domain to include broader social and cultural perceptions of the LGBTQ+ group.
Same-sex marriages are not recognized by Indian law, which defines marriage as a partnership between a man and a woman.
In 2018, the Supreme Court of India invalidated Section 377 of the Indian Penal Code, which made homosexuality a crime. This decision marked a significant win for LGBTQ+ rights in India. However, same-sex weddings remained illegal despite the legalizing of homosexuality. Even though there have been numerous court suits filed in Indian courts to legalize same-sex marriage, same-sex couples are still not recognized legally as of yet. The Delhi High Court did not legalize same-sex marriage in 2017, but it did rule that same-sex couples have a right to a stable relationship.
INTRODUCTION
The word “LGBTQ” encompasses a broad range of individuals who do not conform to the heteronormative conceptions of gender and sex. Since the term lacks a definitive definition, the abbreviation is frequently used with a plus symbol (+) to indicate that the collective is not all-inclusive. However, lesbian, gay, bisexual, transgender, and queer is what the phrase stands for. It speaks to aspects of gender and sexuality simultaneously. While gay, lesbian, and bisexual are terms used to describe a person’s preferred sexual orientation, transgender people do not identify as either male or female. The collective’s “queerness” is commonly denoted by the term “queer.” Other terms like intersex, asexual etc., all fall within the term. It is a complex term which requires an understanding of gender and sexuality as aspects of human life. The heteronormative standards which have become the default are questioned by this collective and is aimed towards identifying their own identities in the spectrum of gender and sexuality.
The Indian legal system has seen some recent changes that may have an impact on same-sex marriages in the country in the future. A clause of the Personal Data Protection Bill, which was introduced by the Indian government in 2020, acknowledges the right to privacy as a basic right. Given that it acknowledges people’s right to privacy, some legal experts think that this clause could be used to support the legalization of same-sex unions. Section 377 of the Indian Penal Code, which outlawed homosexual conduct, was enacted by the British in 1860, marking the beginning of LGBTQ+ rights in India. This statute persisted for more than a century, being applied to discriminate against and persecute LGBTQ+ people, even after India attained independence in 1947.
Social acceptance of the LGBTQ community has advanced significantly on a global scale. In India, the community has long been saved by the judiciary throughout a protracted struggle.
Section 377 of the Indian Penal Code, which has since been repealed, was one among the laws that persecuted sexual minorities under the English-based Indian legal system. The definition of “unnatural offences” included the LGBTQ community, and it led to an atmosphere of violence, oppression, and terror from both the police and the broader public. The Supreme Court’s ruling gave the group a legal basis and marked a significant advancement in the normalization of sexual minorities in India.
There is a glaring lack of awareness, and discrimination can be seen in many different ways. For example, transgender people are excluded from social organizations and are not allowed to work; they are also denied the right to marriage, reproduction, adoption, or maintenance for same-sex couples, among other rights. Nonetheless, social rights continue to be denied even after decriminalization; one such right is the marriage rights of same-sex couples, which is currently being challenged in Indian courts. The community has to take this clear next step to guarantee a normal living, but it is very difficult because of the government’s persistent resistance.
THE INDIAN PERSPECTIVE
In India, the fight for LGBTQ+ rights picked up steam in the latter half of the 20th century. The AIDS Bhedbhav Virodhi Andolan (ABVA), the first LGBTQ+ group, was established in Delhi in the 1990s to combat violence and prejudice against the LGBTQ+ community. A non-governmental organization called the Naz Foundation filed a public interest litigation (PIL) in the Delhi High Court in 2001, arguing that Section 377 was unconstitutional. The LGBTQ+ community and their friends persisted in fighting for their rights in the face of strong resistance from conservative organizations and religious leaders, and in 2009 the Delhi High Court ruled that Section 377 was unconstitutional and decriminalized homosexuality. The Indian Supreme Court, however, reversed this ruling in 2013 and restored Section 377.[1]
In the past, the various Indian kingdoms have made several references to same-sex relationships and transgender people.[2] The concept of gender fluidity is reflected in Hindu literature, art, and architecture from the Vedic era. Among the most well-known examples are the story told in Valmiki’s Ramayana about Hanuman seeing rakshasa women kissing in Lanka[3]; the birth of King Bhagirathi; the temples located in Khajuraho, Maharashtra, and Kornak; and the well-known Kama Sutra, written by Vatsyayana[4] and discussing sexuality, eroticism, and the emotional fulfillment of life. The Khajuraho temples serve as a prime illustration of the community’s previous tolerance.
The Chandela dynasty constructed these temples between the years 950 and 1050 A.D. Images of same-sex relationships, such as an open portrayal of bare men and women erotically embracing one other with sexual flexibility, are engraved into the statues in the temples. Similar photographs can be found at Kornak’s Sun Temple. There are murals in the Ellora caves that show the life of Gautam Budha, the founder of Buddhism, that also show men and women having same-sex relationships.
Baburnama is the most well-known example of a text on same-sex attraction in Islamic literature.[5] Some well-known authors who have demonstrated similar allusions are Sufi poets like Sarmand Kashani and Sufi Saint Bulleh Shah.[6]
Social and legal norms in India evolved together with the British Empire, adopting a more anglicized view of society. The Indian system was forced to adopt western ideals, many of which were shaped by the Church. The Indian legal system was established by the British, and homosexuality was made illegal when Lord Macaulay penned the Indian Penal Code.
This legal need developed in tandem with the societal concept of morality—what is moral and what is not—and the idea that it is immoral. Morality combined with religious belief in life after death led to social criticism of these behaviors and an obvious denial of civility and humanity. This mindset permeated society, and the Indian Penal Code and its Section 377 persisted in the legal system even after independence. The British, who had instituted this legal provision, removed it in their own country in 1967, but the fight persisted in India until 2018.
INTERNATIONAL PERSPECTIVE
As of 2021, 29 nations allowed the legal union of individuals of the same sex. Exactly 20 years ago, the Netherlands became the first nation in the world to legalize same-sex unions; Costa Rica followed suit in 2020. No nation has overturned a law permitting same-sex unions, despite a rise in public acceptance for the practice. Taiwan’s government became the first in Asia to support same-sex marriage legalization in 2019. According to a Japanese court, the government’s refusal to permit same-sex unions is against Article 14 of the Constitution, which guarantees the right to equality. The possibility of legalizing same-sex marriage has also been discussed in other Asian nations, such as Thailand.
The battle for marital equality is far from over, though. Nearly 70 countries still forbid same-sex relationships, and most of Asia, Africa, and Latin America still have laws against it. There is division in the world about acceptance of LGBTQ+ people. Opposition to marriage equality remains strong in many countries due to the increase of nationalism, anti-globalization, and unidentified intersectional repercussions of the pandemic on the campaign.[7]
One attempt that was made specifically to address community concerns was the 2006 summit in Yogyakarta. The historic Yogyakarta Principles were drafted during a meeting of notable academics, activists, and non-governmental organizations in Yogyakarta, Indonesia. The concepts outlined in this statement pertain to human rights concerning gender identity, gender expression, sexual orientation, and sex characteristics. These Principles not only grant the community a wide range of rights, but they also place duties on the state to carry out those rights.
JUDICIAL REVIEW OF LGBTQ RIGHTS IN INDIA
Page Contents
NALSA v Union of India[8]
A second bench of the Supreme Court confirmed transgender people’s constitutional rights under Articles 14, 15, 19, and 21 of the Constitution in April 2014, months after a two-judge bench in “Suresh Koushal v. Union of India” upheld the constitutional validity of Section 377 of the Indian Penal Code.
The Court in “NALSA” accepted nearly the identical grounds that it had dismissed in Suresh Koushal. The court affirmed transgender people’s autonomy to choose their gender and ordered federal and state governments to officially recognize transgender identities as either male, female, or third gender.
KS Puttaswamy v Union of India
A nine-judge Supreme Court bench unanimously acknowledged the right to privacy as a fundamental constitutional right in 2017. This decision overturned the 2013 “Suresh Koushal” finding, a “discordant note which directly bears upon the evolution of the constitutional jurisprudence on the right to privacy.”[9]
“In our opinion, it is untenable that the High Court in Koushal incorrectly relied on foreign precedents “in its zeal to preserve the so-called rights of LGBT persons.” The term “so-called” seems to imply the practice of a liberty under the guise of an imaginary right. This interpretation of the LGBT community’s privacy-based demands is incorrect. Their rights are real, based on solid constitutional doctrine, not just “so-called” rights. The right to life is inherent in them. They live in seclusion and honor. They are what make freedom and liberty what they are. An integral part of identity is one’s sexual orientation. “Equal protection requires that every individual’s identity be protected without discrimination,” Justice DY Chandrachud wrote in a concurring opinion.
Shafin Jahan v Union of India
In March 2018, the Supreme Court overturned a Kerala High Court ruling that had dissolved the marriage of a twenty-four-year-old Muslim woman who had wed the guy of her choosing. The decision acknowledged the freedom to select one’s mate as an essential component of the basic right to freedom and dignity.
Choosing a companion, whether in or out of marriage, is solely a personal decision for each person. Marital intimacy exists within an untouchable core private zone. Religion has absolutely no bearing on a person’s unalienable right to select a life partner. The foundation for acknowledging private decisions made by an individual is not social approbation, the court ruled.
The SC heard a remedy petition against the “Koushal” verdict in August 2018. To the degree that it made homosexuality illegal, IPC Section 377 was overturned by a five-judge Constitution Bench. The “Navtej” verdict essentially declared that members of the LGBTQ community are equal citizens and emphasized that gender and sexual orientation cannot be the basis for legal discrimination.
THE PATH FORWARD
Interaction with the LGBTQ community represents the next viable alternative, one that is sorely required in the Indian context. This should start with a more candid and inclusive conversation about sexuality and sex in families and communities. It is essential that the community participates in mainstream activities. Privacy ought to be valued and safeguarded. The existence of homosexuality or lesbianism has no bearing on society. As stated correctly in the Puttaswamy ruling, it is a person’s sexual choice, and as such, “equality demands that sexual orientation of each individual be protected on an even platform.” Programs for sensitization and training are therefore required.
The first myth that has to be dispelled is the idea that biology has no bearing on the situation; rather, choice plays a role. There are a lot of these false beliefs in the community, and appropriate programs are needed to dispel them.
As part of sex education, information should be distributed at all levels, beginning in the classroom.
It ought to be imparted in an honest manner, free from judgment or humiliation. Law enforcement and the police are another important industry. There have been instances of abuse and violence committed by Indian police against the community, and they are not known to be particularly sensitive. [11]
It is crucial to remember that conservative religious groups, in particular, continue to oppose LGBTQ+ rights in India. These organizations may oppose any efforts to advance the legal recognition and protection of LGBTQ+ rights, which could result in legal and political conflicts. In general, it is still unclear what will happen to LGBTQ+ rights in India. There have been encouraging breakthroughs and room for advancement, but there are still difficulties and barriers to be solved. In addition to fighting for change and their rights, LGBTQ+ activists and supporters must keep spreading awareness and fostering a culture of greater acceptance and understanding in society at large.
CONCLUSION
It’s time to accept that there are members of our community who identify as non-heterosexual and that their sexual orientation is merely one facet of who they are. They share the same humanity as all heterosexual people. Includement-focused social involvement needs to be the main goal. The concept of shame needs to be eliminated and this needs to become commonplace. One’s choice of sexual partner should not be taken personally; it is a matter of personal preference. In addition to fostering a sense of uniformity in the legal protection of social, economic, and cultural rights, a clear statute can be quite successful in guaranteeing justice.
[1] 2 Ray S, “Indian Culture Does Recognise Homosexuality, Let Us Count the Ways” The Quint (September 11, 2018) <https://www.thequint.com/voices/opinion/homosexuality-rss-ancient-indian-culture-section-377> accessed December 5, 2021.
[2] Pandey BV, “Why Legalising Gay Sex in India Is Not a Western Idea” (BBC News, December 31, 2018) <https://www.bbc.com/news/world-asia-india-46620242> accessed December 5, 2021.
[3] Desk ITW, “Homosexuality in Ancient India: 10 Instances” (India Today, July 10, 2018) <https://www.indiatoday.in/india/story/10-instances-of-homosexuality-among-lgbts-in-ancient-india-1281446- 2018-07-10> accessed December 5, 2021
[4] In the chapter titled, ‘Auparishtaka’, gay men have been referenced in context of oral sex. Homosexual men assumed a passive role and were referred to as ‘mukhebhaga’ or ‘asekya’.
[5] Salam ZU, “An Emperor with Foibles” The Hindu (February 15, 2014) <https://www.thehindu.com/books/books-columns/an-emperor-with-foibles/article5692770.ece> accessed December 5, 2021
[6] Khalid H, “From Bulleh Shah and Shah Hussain to Amir Khusro, Same-Sex References Abound in Islamic Poetry” Scroll.in (June 17, 2016) accessed December 5, 2021.
[7] Marriage equality: Global comparisons Council on Foreign Relations, https://www.cfr.org/backgrounder/marriage-equality-global-comparisons
[8] AIR 2014 SC 1863. (India)
[9] AIR 2017 SC 4161. (India)
[10] 3 AIR 2018 SC 4321. (India)
[11] The Tribune India, “Same-Sex Marriages Not Recognised by Our Laws, Society and Our Values: Centre to Delhi HC” The Tribune India (September 14, 2020) <https://www.tribuneindia.com/news/nation/same-sexmarriages-not-recognised-by-our-laws-society-and-our-values-centre-to-delhi-hc-141139> accessed December 5, 2021.
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Authors: Jayani Banerjee, Pratham Kapoor, Harsh Bhalotia (3rd year BBALLB students at Christ (Deemed to be University) Pune, Lavasa Campus)
