Article

Is freedom to love enough? India’s stance on same-sex marriage

Is freedom to love enough? India’s stance on same-sex marriage and other rights to the LGBTQIA+ community 

Authors –  ANKITA BHUTRA and GAANA N

Keywords: LGBTQIA+, Same-sex marriage, Respect to Marriage Act USA, History, India, homosexuality, sexual orientation, sexuality 

ABSTRACT 

Despite of great success achieved in influencing people’s opinion around normalizing homosexuality a lot more is yet to be done. The LGBTQ+ community may have legal rights to identify their true selves now, however, there remains a stigma related to them in society. The article conducts empirical research on the plight of homosexuals and the sexual prejudice and biases faced by them repeatedly. After very briefly outlining the extent of the issues, we discuss the roots of homosexuality and how our ancient culture and religions witnessed the practice of homosexuality, the testimony of which can still be found in ancient temples, artworks, etc. 

The study progresses by raising prominent questions on the absence of Marital rights in the LGBTQ+ community and other rights and responsibilities imparted and enjoyed by heterosexual people through marriage. Most importantly the study analyses the recently passed “Marriage Respect Act” by the USA. It presents a hypothesis on India’s stand on gay marriage, what can India learn from the USA’s new legislation. And how society’s mindset plays an important role in imparting well-deserved right of recognition to the LGBTQ+ community.  

INTRODUCTION

“Who am I? what is my identity? Why I am the way I am”? We all ask such questions ourselves at one point in our life. And the answer to these questions is deeply rooted in our conscience. Since childhood, every child is taught about his name, gender, cast, and creed, so many times that when he grows up and feels contrary to the “already established identity” it almost feels like a war against oneself. It takes courage to be different and to accept that one has different views and different preferences than the general crowd. The hardship that follows the realization and revelation is both internal as well as fuelled by external factors. A person coming out as a gay or a lesbian has to constantly go through various kinds of terminations, some may have unsupportive parents or friends, bullies, and if nothing at all “society” is always there. 

It is undoubtedly a fact that in recent years LGBTQ+ community has made a great stride, the number of people who are now ready to accept their actual gender identity and cheerfully represent their orientations is worth celebrating. However, the LGBTQ community still has to go through a lot of problems repeatedly. When we talk about the problems faced by the LGBTQ community mostly. We focus on how they get bullied by people, how they are still excluded, and how people still try to force their orthodox ideologies. While completely invalidating their point of view and preferences. As well as the ill-treatments done to them by family and society in general. If we dig a little deeper into this issue, we realize that these are the mere tip of an iceberg. Deep down there lies humongous issues that are going unnoticed and not getting the recognition it deserves.  

Issues faced by the LGBTQ community

The first and foremost important issue faced by the LGBTQ community in India is the inability to marry their partner. Article 21 and Article 14 of the Indian constitution provide us with the fundamental rights of marrying the person of one’s choice and the right to equality respectively. Depriving the homosexual community of marital rights seems very unfair and unjust. The inability to marry also prevents them from enjoying their rights of personal liberty, adoption, parental recognition, property rights, and other financial matters. 

The LGBTQ community is quite a lot of time disregarded and referred to as abnormal or outlandish. Sometimes it goes to such a huge extent that they are even forced to indulge in conversion therapy by their families or close ones. This abhorrent practice also known as “reparative therapy” or “gay cure therapy”- tries to change someone’s sexual orientation[1]. Practically it means to stop someone from being gay or identifying oneself as a different gender from the one that they had at birth. In India, conversion theory is regarded as an umbrella term including treatments offered by the self-attested spiritual guru. Who claims to “cure” homosexuality by the means of some prayers, or psychic techniques and uses physical violence[2].  

The main reason behind such problems still tormenting the homosexual community is the lack of representation they have in the judicial and political arena. How can one expect any transformation or ensure that their issues are been taken care of if there is no proper representation of their interests at higher levels? How disheartening it is to realize that it took us 75 years to get one transgender representative as a judge in the Indian judiciary.[3] 

HISTORY 

Our Indian society is driven by this very strong belief that homosexuality is a western concept and not on par with our age-old traditions and hence it is often seen as a taboo. But, the concept of homosexuality existed in Indian society throughout the ages. Moreover, it was homophobia that was imported from the west[4]. Same-sex love can be seen in Indian society through literature surveys. Several Hindu festivals celebrated homosexuality, the ancient book Kamasutra described acts of sodomy, and references to women loving women in Mahabharata and Ramayana could be seen[5].

Rig Veda

The Rig Veda, (1500 BC)[6], describes the pre–patriarchal period where the mindset was triadic, anti–binary, and focused on female sexuality. There is a well-known misconception that Manu smriti prescribed punishments for homosexual behaviors. But after a study one can find that the punishment doesn’t talk about the gender of the partner involved but with the loss of virginity that decreed a young woman unworthy of marriage.

Sushruta Samhita

Sushruta Samhita, (600 BC) elucidates two different types of homosexual men (Kumbhika – men who take the passive role in anal sex; and Asekya – men who devour the semen of other men) as well as transgender (Sandra – men with the qualities, behavior, and speech of women) [Sushruta Samhita: 3.2.42][7] 

Medieval period

During the medieval period, homoerotic didn’t have to face much prejudice and got wide acceptance. Baber, the first Mughal emperor of India, described romantically his love for a boy, Bamburi, at Andezan, in his work Tuzuk – i – Babri (Baburnama)[8].

The sculpture of the medieval period too depicts homoerotism. The carvings seen in the Khajuraho temple[9] constructed by the Chandela rulers of medieval India portray images of women erotically embracing other women and men displaying their genitals to each other.

As colonization happened, the display of homosexuality and sexuality, in general, became more methodical. The British influence on Indian sexuality took the form of repression and domination. The Victorian puritanical value system was strongly concerned with reproduction contrary to the pleasure mindset of India. This value system was visible in the drafting and adoption of section 377 of the IPC 1860[10] in India. 

IS LOVE ENOUGH? 

India being a country of traditions and culture witnesses plenty of marriages. Over-the-top divorce rates and liberalized divorce laws also cannot stop young Indians from seeking the institution of marriage. But why love is not enough? Why mere companionship is not enough?  Why do people often seek to get married? The answer to this is very simple. Marriage binds people to both social and economic consequences. Marriage is not just a private matter of an individual but it also impacts society and other people related to them. There is always a state and social sanction bound to the relationship.

The parties involved enjoy mutual rights, ensuring that one person cannot desert another on their whims and fancies. There are several other rights like the laws of inheritance which gives the married spouse a right to the property of the other spouse, along with other perks like insurance and tax benefits, parental recognition, adoption rights, etc. 

Marriage

Marriage is said to be both an instrumental and an intrinsic good. As an instrumental good, it allows couples to attain social and economic goals. As an intrinsic good, it allows persons to declare their love to one another. But to our misfortune, this right is not extended to same-sex couples[11].

The constitution of India governs over the principles of liberty, justice, and fraternity and promises to treat all with equality irrespective of gender cast sex race, or religion. Denying the right to marriage to the LGBTQ community contradicts the promises made by the makers of the constitution. Same-sex marriage displays another aspect of the constitution – that is  Equality. Equality and autonomy seem like two very different concepts, but they have a lot in common here. Equality and dignity always go hand in hand and can not sustain without each other. 

One’s sense of self-worth crashes down realizing that they are been treated as “second-class citizens” in their very own country making it unimaginably hard to live a life of dignity. Each time a homosexual person is denied getting married to the partner of their choice. A direct breach of their right to choose one’s life partner, and each time they witness their heterosexual friends getting married to people of their choice. It brutally violates their right to equality. 

It has been observed that courts have shown active participation when it comes to cases of inter-religious marriages or inter-caste marriages and protected the married couple’s right to dignity. But the same cannot be deduced in the case of same-sex marriages. The constitution is ready to uphold same-sex marriage but the real question is when will the courts and society accept it[12].

USA RESPECT TO THE MARRIAGE ACT 

The Human Rights Campaign Foundation tracks developments made in the legal recognition of same-sex marriage in different countries around the globe. Currently, there are 32 countries where same-sex marriage is legalized. In the year 2000, The Netherlands became the world’s first country to legalize same-sex marriage. Four couples married in the world’s first same-sex wedding in the year 2001.

The United States of America recently took a step forward in giving recognition to the LGBT community by passing the Respect for marriage act[13]. The United States Congress defends the right to marry and addresses same-sex unions in the act. On December 8, 2022, the House passed legislation to safeguard same-sex marriage at the federal level and handed it to President Joe Biden for signature. The Respect for Marriage Act repeals President Bill Clinton’s 1996 Defence of Marriage Act[14], which prohibited same-sex marriage. Since the Supreme Court’s judgment in Obergefell v. Hodges[15] in 2015, national support for same-sex marriage has surged. 

According to a Gallup poll, 71% of Americans support legalizing same-sex marriage by 2022, the greatest approval rate for such unions in US history. The respect for marriage act will guarantee that same-sex marriages have legal protections. Additionally, it guarantees that such marriages would be recognized by the federal government as legal unions. Which offers crucial protection in areas like immigration, taxation, and eligibility for federal welfare programs.

Respect for Marriage Act

The House decided to alter the Respect for Marriage Act on December 8, 2022. This bill gives same-sex and interracial marriages legal protection. Accurately, the bill interchanges parts that define marriage as between a woman and a man and the other half as a person of a different sex under federal law with provisions that define any marriage between two individuals that is legal under state law. The law also bans any right or claim relating to out-of-state weddings based on sex, race, ethnicity, or national origin. Replacing sections that say states are not compelled to recognize same-sex marriages from other states with similar restrictions. The bill gives the Department of Justice the authority to file a civil case and creates a private right of action for noncompliance.

The bill does not:

(1) affect religious liberties or conscience protections guaranteed by the Constitution or federal law; 

(2) require religious organizations to provide goods or services to formally recognize or celebrate a marriage; or.

(3) affect any privileges that do not come from marriage, or 

(4) recognize any marriage between more than two individuals under federal law.

WHAT INDIA SHOULD LEARN ABOUT SAME-SEX MARRIAGE FROM THE USA

Marriage in India is seen as a socio-legal sanction that confers several matrimonial rights. Until now, the Indian legal system has exclusively permitted heterosexual weddings. In India, marriage is still thought to be between two different sexes, one male and one female. People’s brains are so restricted that they do not think outside the box. The United States just enacted legislation to legalize same-sex marriage. According to the Delhi High Court and statutes, same-sex marriage is not accepted in our society. How far has India progressed in legalizing same-sex marriage? 

In India, we must investigate the legal issues and issues that exist in the country. Nothing is specifically specified in the Constitution, however, we may argue that Indians’ rights are derived from two fundamental sources:

First, as a signatory to international treaties, India is obligated to acknowledge the liberty to choose partners. Second, the right to marry and choose one’s partner falls under Article 21. Which guarantees the right to life and personal liberty, as the Indian judiciary has repeatedly stated.

INDIAS STAND ON HOMOSEXUALITY 

The year 2018 is considered the year of the Indian judiciary, India hadn’t witnessed anything as controversial as it since the days of emergency. It became the year when the honorable supreme court of India incorporated sexuality as a vital part of the constitution as well as of people’s life. The country witnessed a lot of landmark judgments throughout this year among which the most crucial ones were Navtej Singh Johar v. Union of India, decriminalizing homosexuality. In the well-known judgment of Indian Young Lawyers Association v. State of Kerala[16], also known as the Sabarimala decision court allowed Hindu women of menstruating age to enter the Sabarimala temple. 

Finally, in the case of Joseph Shine v. Union of India[17], the Court struck down the validity of Section 497 of the Indian Penal Code, 1860[18], dealing with adultery provisions. This was the golden year when the Supreme Court celebrated constitutional morality. The fundamental logic behind each of these decisions was that constitutional morality leads the Court. To strike down laws that may be acceptable in the name of social convention. But social morality must bow before constitutional values of equality and dignity. In Navtej Singh Johar’s case, constitutional morality led the Court to strike down the sodomy law. 

 Navtej Singh Johar v. Union of India

The case of Navtej Singh Johar v. Union of India, decriminalizing homosexuality. It was largely based on the autonomous right of an individual to choose her partner, irrespective of sex. Chief Justice Dipak Mishra interestingly said that[19]– 

‘There is no doubt that an individual also has a right to a union under Article 21 of the Indian Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, the union also means companionship in every sense of the word, be it physical, mental, sexual, or emotional The LGBT community is seeking the realization of its basic right to companionship, so long as such companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.’

The Chief Justice initially gives the impression that Article 21 only grants the right to a union, not a right to gay marriage. But, if union includes marriage, how can the freedom to marry be separated from the fundamental right to life? The Chief Justice stated that “even marriage was not equivalent to procreation,” and hence non-procreative sex could not be against the natural order. That, of course, begs the question: if procreation is not the goal of marriage, why deny gay couples the same right that heterosexual couples have?[20]

K.S. Puttaswamy v. Union of India

Justice Chandrachud who was a party to the Johar judgment also happened to be a party to K.S. Puttuswamey’s[21] (Right to Privacy) judgment. He laid down some groundwork for the eventual overruling of the Suresh Kumar Koushal judgment[22] and also held that—

“Family, marriage, procreation, and sexual orientation are all integral to the dignity of the individual. Above everything, the privacy of the individual recognizes an inviolable right to determine how freedom shall be exercised.”[23]

As a result, a majority of five of the nine judges involved in the decisions found that people of alternate sex had a right to family life, including marriage. Because the question did not emerge directly in that case, the Court most likely delayed ruling on it. Even though the Union of India did not oppose the petition in the Navtej Johar case. It filed an affidavit noting that if court examined the concerns of gay marriage, it would have taken a different stance.

AIDS Bhedbhav Virodhi Andolan

In 1994, an NGO, the AIDS Bhedbhav Virodhi Andolan (ABVA), petitioned the Delhi High Court to have Section 377 repealed since it infringed on the right to privacy[24]. When the petition was heard in 2001, the movement had lost some of its vigors. As a result, the lawsuit was unfortunately dismissed

Following the dismissal of ABVA’s appeal, it took another brave NGO, the Naz Foundation[25] to submit a petition before the Delhi High Court. Their main focus was HIV/AIDS prevention and care. Because it was the 1990s, they had to collaborate closely with the LGBT community.

The case was heard by a court bench comprised of Chief Justices Ajit Prakash Shah and Justice Muralidhar in 2009. The Union of India took a discordant stance on this matter. The Ministry of Home Affairs filed an affidavit in support of the retention of Section 377. As well as the National AIDS Control Authority (NACO) filed a different affidavit., which was signed by the Ministry of Health and Family Welfare. It stated that AIDS was difficult to prevent and treat because homosexuality was criminalized, pushing everything underground. Section 377 should therefore be decriminalized. In the end, the High Court read down Section 377 and ruled that consensual homosexual behavior in private was not a crime[26].

The Delhi high court verdict was again challenged in the supreme court by Suresh Kumar Koushal accompanied by many religious groups and other minority communities. On 27 March 2012, the judgment was reserved. On 27 November 2013, the verdict was read aloud in Court, and the audience fell silent. The Supreme Court overturned the Delhi High Court’s decision, making millions of Indians criminals once again.

National Legal Services Authority v. Union of India 

Following the Supreme Court’s judgment in the Koushal case, two additional events happened. Almost simultaneously, the Court decided the NALSA[27] case, in which transgender people’s rights were granted constitutional status. Second, the Supreme Court issued its decision in the privacy case. In the privacy case, a bench of nine judges effectively declared the Koushal decision to be bad law. The Navtej Johar case, which decriminalized homosexuality, was heavily influenced by the privacy case.

To this date, the battle led by homosexual people is not over yet they still have to fight a lot and they very bravely win the battles. The incident of Kerala high court[28] where lesbian couples Adhila Nassrin and Fathima Noora reunited despite tremendous family and societal pressure. separating the couple forcefully. The couple chose to wage a legal battle for their rights and freedom. The Kerala High Court allowed the lesbian couple to reunite in a landmark decision. The order was issued in response to Adhila’s habeas corpus petition. In which she requested that the police produce her partner, who had forcibly removed from her home by latter’s parents.

In the current scenario, 4 gay couples have filed a PIL in the supreme court stating how centers’ refusal to provide marital rights to the LGBTQ community is violating their constitutional rights. CJI DY Chandrachud has now granted the government one month to address the petitions urging recognition of same-sex marriage. 

CONCLUSION 

Aristotle, the Greek philosopher says “Man is a social animal. He who lives without society is either a beast or God.” Thus, man is by nature a social animal and cannot be separated from society. Society is the first stepping stone of a state or a country. Society takes up a huge chunk of an individual’s life. It becomes a huge contributive factor in the formulation of one’s preferences, behaviors, thought processes, etc. To have a progressive country a development-oriented country it is very important to have progressive societal norms, and societal values that do not isolate people but rather are inclusive. An ideologically regressive society limits the scope of people and ends up violating their rights of people.

India and countries around the globe have undoubtedly shown great acceptance of homosexual communities yet there is some prejudice still left. Although many people are accepting themselves and their close ones. We can still find a huge number of people simply unaware of themselves, or even worse. Some even disregard the whole concept of homosexuality only. To change this the change must be brought within the society. 

Society is majorly influenced by over-the-top capitalism. The huge brands in the market have a persuasive grip on people’s minds which they use for their benefit. The increasing influence of such capitalism is also a rising issue in the LGBTQ community. This form of problematic capitalism is called Rainbow capitalism[29]. 

Rainbow Capitalism

The world observes the month of pride in June every year. Rainbow capitalism, also known as pinkwashing, refers to corporations that incorporate pride in gender and sexual identities into their merchandising. Although rainbow capitalism can help normalize the LBGTQIA community. It is harmful to LGBTQIA community because it diverts the focus of pride month away from gender and sexuality acceptance. Profits from the community by making corporations appear “woke” without the need to utilize their power to create change, and frequently misrepresents the LGBTQIA community. This is evident because rainbow capitalism promotes the narrative that we have achieved thoroughly accepting and supportive surroundings for the LGBTQIA community. However, many issues and stigmas must be addressed before this welcoming community can be achieved.

Rainbow capitalism also provides a scapegoat for brands to appear inclusive without the brand’s actions correlating with that. It also limits our understanding of queer liberation. Queer liberation advocates for the abolition of all forms of discrimination against the LGBTQIA community. Including employment discrimination, healthcare access, equal housing access, police violence, and the loss of queer space. Large corporations profiting from the LGBTQIA community by exploiting the capitalist system that actively harms the LGBTQIA community limits society’s understanding of queer liberation[30].

People want to spend their money in June to support the LGBTQIA community and celebrate pride. There are ways to do this without contributing to the negative effects of rainbow capitalism. The best way to do this is to support LGBTQIA-owned businesses during Pride Month. Or to support satisfaction by actively participating in safe spaces and assisting with conversation. Pride month should be used to celebrate diversity, inclusion, and progress, not just to buy and sell rainbow flags.

Awareness regarding Community

To reduce homophobia in society there is a need for a lot of awareness. A society that is in darkness can never move forward with acceptance. The awareness should be regarding the sentiments of LGBTQ community the problems faced and how to make them feel accepted. Young children, who are the future of the world, should be taught how to not discriminate among people and be less judgemental and more understanding. The elderly should be introduced to the topic of homosexuality, as many of them yet don’t grasp the concept of homosexuality itself.

The people from the community should visit counselors to accept themselves and understand themselves in a better way. The government and judiciary should be mindful of the rights of such minorities and make schemes and laws considering the welfare of the community. That’s the only way forward to improve the living standard of the community and ensure its prosperous functioning.

FOOTNOTES 

1. BBC Report What is conversion therapy and when will it be banned?
2. Mehrotra, D., The Barbaric Reality of Conversion Therapy in India: Why Is It Vicious?
3. Pinki, P.M., Duhan, K. and Pavithra, N., 2020. Status of transgender in India: A review.
4. Same-Sex Love in India: Reading from Literature and History, Penguin India, New Delhi,2000, p.v. pg 9
5. Tiwari, N., 2010. Homosexuality in India: Review of the literature. Available at SSRN 1679203.
6. Giti Thadani, Sakhiyani – Lesbian Desire in Ancient and Modern India, Cassell, London, 1996 p.21.
7. Rahul Peter Das, The Origin of the Life of a Human Being: Conception and Female According to Ancient Indian Medical and Sexological Literature, Motilal Banarasidass Publishers Pvt. Ltd., Delhi, 2003 p.230
8. Sherry Joseph, Social Work Practice and Men Who Have Sex with Men, SAGE Publications, New Delhi, 2005, p. 75.
9. LGBT and Hinduism, available at en. Wikipedia. Org/wiki/LGBT_topics and_Hinduism, accessed on December 14, 2009 at 1:23 P.M.
10. Section 377 of Indian Penal Code, 1860 (45 of 1860) reads: Of Unnatural Offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or imprisonment of either description or a term which may extend to ten years, and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse to the offence described in this section.
11. Sex and supreme court, Saurabh Kirpal pg 132
12. Sex and supreme court, Saurabh Kirpal pg 132
13. Duignan, Brian. “Respect for Marriage Act”. Encyclopedia Britannica, 9 Dec. 2022
14. Kelly, K. Carter (2022, December 13). Defense of Marriage Act. Encyclopedia Britannica. 
15. Britannica, T. Editors of Encyclopaedia (2022, December 10). Obergefell v. Hodges. Encyclopedia Britannica. 
16.  The Constitution of India, 1950, Art. 21A, inserted vide The Constitution (Eighty Sixth Amendment) Act, 2002 (w.e.f. April 1, 2010)
17. (2018) 10 SCC 1
18. (2019) 11 SCC 1
19. (2019) 2 SCC (Cri) 84
20. Section 498A of the Indian Penal Code makes criminal conduct that amounts to cruelty as well as harassment for the purposes of seeking dowry.
21. K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 (‘the privacy judgement’)
22. (2014) 3 SCC 220. This was the judgement whereby the Supreme Court first reversed the Delhi High Court judgement decriminalizing homosexuality, i.e. Naz Foundation v. Union of India (2009) 111 DRJ 1
23. See the privacy judgement, p. 635
24. Mentioned by Geetanjali Misra in her paper: ‘Decriminalizing Homosexuality in India,’ Reproductive Health Matters 17(34), 2009, p. 22
25. Naz Foundation v. Govt. of NCT of Delhi (2017) 15 SCC 619
26.  Naz Foundation v. Govt. of NCT of Delhi (2009) 111 DRJ 1
27. National Legal Services Authority v. Union of India (2014) 5 SCC 438
28. Kerala HC allowed 23yo women to live with lesbian partner 
29. Agarwal, A.K., 2019. Man is a social animal. In Legal Language and Business Communication (pp. 145-175). Palgrave Macmillan, Singapore.
30.  Field, N., 2016. Over the rainbow: Money, class, and homophobia. Lulu. com.

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