Research Article

Should Same-sex Marriages be Legal in India?

Priyal Palak and Dewanshi Agarwal

Author: Priyal Palak, 1st year student at NLUO.
Co-Author: Dewanshi Agarwal, 1st year student in NUSRL, Ranchi. 

Abstract

The decriminalisation of homosexuality in 2018 was the first step towards achieving the rights of the LGBTQ+ community but we still have a long way to go. Legal recognition to the community has been given, but India still has a long way to go for societal recognition and acceptance of the LGBTQ+ community. The next big question in front of us is the legality of the same-sex marriage in our country. Getting married to someone who is of the same sex as you is still not allowed in our country. The aim of this research article is to briefly analyse the arguments in favour and against the legalisation of same-sex marriage in India. The research refers to different cases which talk about the rights of the LGBTQ+ community and also has led to the landmark judgement of 2018[1] and also what few personalities belonging to the legal fraternity have to say about the issue. Also, this research throws light on the history of homosexuality and how it has been in existence since ancient times. The significance of this research is to look deeper into this disputed matter legally and help the reader think more about the problem and eventually look for a solution.

Introduction

The LGBTQIA+ community is an acronym referring to the various sexual orientations and gender identities. It stands for lesbians, gays, bisexuals, transgenders, queers, intersex, asexual and the + referring to the other sexual orientations & genders. Times and attitudes are changing. People are evolving and becoming more progressive and inclusive. The human rights of the community are coming into sharper focus around the world, with important advances in many countries. In 2018 a landmark decision of Supreme Court of India decriminalised consensual homosexual intercourse by reading down a 158-year-old British colonial era law Section 377 of the Indian Penal Code and excluding consensual homosexual sex between adults from its ambit.
Despite of all these developments marriage remains a fairytale fantasy for the community. Marriage is considered to be a sacrosanct union between two souls in the society. It occupies a prominent place in the lives of humans. Apart from the traditional norms, marriage has numerous legal benefits. “Marriage gives the parties a right to acquire properties in joint names, own joint bank accounts, lockers; nominate each other as nominee in insurance, pension, gratuity papers. Spouses are legally entitled to receive pension in case of death or disability of the other spouse.”
However same sex marriage despite of having privileges like adoption, maintenance, property inheritance the queer activists are afraid it would discourage more inclusiveness of the other minorities and would just result in pinkwashing of the community and wouldn’t result in much substantial benefits for the Indian queer community. It actively fails to cater the marriage rights of the nonbinaries of the community and is a privilege reserved for the cis queers. Most of the queers and trans people struggle just for acceptance and to have a roof above their head, food in their belly and for education. Marriage is a privilege which most of the queers dream only when they are asleep and many don’t even dream about it. The priorities for them right now is revocation of the Trans Bill 2020 which takes away the basic right of self-identification from the trans folks, banning conversion therapies and anti-discrimination law.

Background

Homosexuality is an ancient phenomenon which can be traced back to the Rigveda. In Kamasutra, an Indian Sanskrit text on sexuality, eroticism, etc, there is a mention of Harems of young boys kept by Hindu aristocrats and Muslim Nawabs. But the arrival of Brahmanism and later British colonialism made the experience of these things seen as something hateful. The invasion of Aryans suppressed homosexuality. The lives of people belonging to that community were made like hell. They were subjected to many kinds of torture and were harshly punished. Such instances eventually gave birth to homophobia – disliking or hatred towards the community.
The law which decriminalised homosexuality was laid back in 1860 during the colonial rule by Lord Macaulay. It was famously known as the anti-sodomy law and was held against the nature. It stated, “Whosoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”[2] It was modelled on the Buggery Act of 1533. It took us 158 years to recognise the rights of the LGBTQ+ community but the struggle is going on since long.
The fight against this colonial era law dates back to 1990s. The first known protest for gay rights was conducted on August 11, 1992.[3] An organization called the AIDS Bhedbhav Virodhi Andolan (ABVA) organized it in front of the Delhi police headquarters against the rounding up of men from Connaught Place’s Central Park on charges of homosexuality. The same organisation after two years challenged the constitutionality of the section 377 through a PIL in Delhi High Court. However, after a co-founder of ABVA, Siddhartha Gautam’s early and sudden demise, ABVA failed to follow through on the petition and the case was dismissed in 2001.
The legal recognition of the community again got its momentum in 2009 in Naz Foundation v Government of NCT of Delhi[4]. Naz Foundation had challenged the constitutionality of Section 377 of IPC through a petition which was filed in 2001. It was decided that this law is unconstitutional, i.e., it violates the provisions laid in the Indian Constitution.
An appeal was made from this decision of Delhi High Court to the Supreme Court of India. So in 2013, in Suresh Kumar Koushal & Anr v Naz Foundation & Ors[5], Section 377 was made constitutional again. It was said that Section 377 is gender neutral and in no way it discriminates on the basis of sex. Then in 2014 the Supreme Court recognised the rights of the transgender community in the landmark case of NALSA v Union of India & Ors[6]. Supreme Court held that the fundamental rights are also applicable to the transgender community.
Shashi Throor who is currently serving as the Member of Parliament in Lok Sabha since 2009, tabled a Bill in the Lok Sabha in 2015 decriminalising Section 377 but it was not passed by majority.
It was in the year 2018 when the LGBTQ+ community finally got what they wanted. In the landmark case of Navtej Singh Johar v Union of India, Writ Petition (Criminal) No. 76 of 2016, the Supreme Court struck down the 158-year-old law and held Section 377 of IPC unconstitutional. Homosexuality was decriminalised. But this provision is still applicable for minors and non-consensual sexual intercourse.
Recently a controversial act called The Transgender Persons (Protection of Rights) Act, 2019 was passed. It aimed at promoting the rights and welfare of transgender people. This is a major setback to all the progress and fights put forth for the furtherance of well being and rights of the LGBTQ+ community. It was vehemently rejected by the transgender community because of various clauses. Despite of this, the Act was passed leading to protests and outrage of the Indian LGBTQ+ community.
After years of exertion, the rights of the LGBTQ+ community are now finally recognised by law but marriage for them is like a luxury which they can’t reach until same-sex marriages gets legalised in India.

Arguments

Legality of the same sex marriage is an ongoing debate. Despite of the various rights the LGBTQIA+ people have achieved, this basic right to get married is prevalent in only about 30 countries with Netherlands being the first among all the countries to legalise it in 2001 itself.
People who are not in support of the same sex marriage justify their stance by putting forth their religious views and texts. There are also few people who justify their regressive stance on same sex marriage by saying that marriages are primarily done to secure a mother and father for a child and the marriage between same sexes would divert this basic purpose of marriage. People who are not in the favour of its legalisation also say things like same-sex couples cannot bear children on their own and thus depend on others to become parents. According to them children need both, a mother and a father, to develop properly and if they’re raised by the people belonging to the LGBTQ+ community, they’re more likely to experience gender and sexual disorders. The root cause for all these stances come from the socially prevalent homophobia in the society.
However, many in the LGBTQIA+ community itself are against the same sex marriage. According to them it would only serve the rights of the privileged among the community. The “same-sex” marriage is exclusionary of the non-binaries. Many of the activists working for the community have their present eyes on helping the 2,000 trans persons excluded from the updated National Register of Citizens (NRC), the exercise for which was concluded in Assam in 2019. They want the Transgender Persons (Protection of Rights) Act, 2019 to be repealed. It is apparently passed for the protection of transgender people but it has been criticised heavily by the community for violating the basic right to self-determination of transgender people and for being discriminatory in punishment for physical and sexual violence against trans persons. They first of all want social acceptance of and safety for all the sexualities and genders before the legalisation of same sex marriage.
Supporters of same sex marriage argue that marriage is done for love and not for children. There are many heterosexual couples who also can’t bore children of their own and have to rely on others. As per those in favour of same sex marriage, many of the couples do not even want to have children. The recent developments have let consenting adults to enter into same-sex relationships but there is barely any societal acceptance. Such relationships do not stand in insurance claims, property rights, inheritance and other legal benefits of marriage. Not allowing homosexuals to choose whom they want to spend their married life with is infringement of their basic right to life which is guaranteed under Article 21 of the Indian Constitution. It is discriminatory and hence it violates Article 14, right to equality.

What does the law say?

In 2014, the statement released by The Indian Psychiatric Society debunked the prevailing social belief that homosexuality is a mental illness. It stated that ‘it is time to stop looking at homosexuality as a mental illness’ and stressed that there was no scientific evidence that sexual orientation can be altered by any treatment[7]. It also talked about how conversion therapies affect the mental health of the queer people. It also addressed how homosexuality should be decriminalised in India which later came into existence on 6th of September, 2018 in Navtej Singh Johar v Union of India, Writ Petition (Criminal) No. 76 of 2016 case by gradual legal fight put bravely by LGBTQIA+ activists and different organisations.
In 2018, KS Puttaswamy (Retd) v Union of India[8] case, Supreme Court stated that the right to sexual orientation is a fundamental right under Right to Privacy which cannot be denied.
The Humans Rights Charter recognises the ‘right to marry’. It states, “men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.”[9] In 2018, Supreme Court set aside a judgement of Kerala High Court which annulled the marriage of two consenting heterosexual adults stating that “the right to marry a person of one’s choice is integral to Article 21 (right to life and liberty) of the Constitution”[10]. This sets precedence for the marriage between the consenting LGBTQIA+ adults as well.
In the same year during the decriminalisation of the section 377, Justice Khanwilkar said, “There can be no doubt that an individual also has a right to union under Article 21 of the Constitution. When we say union, we do not mean union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.”[11] The judges considered Article 14, 15 and 21 of the Indian Constitution while deciding the case. Article 14 provides equality to all but Section 377 was putting an unreasonable restriction on the Right to Equality. They also stated that Article 15 does not allow anyone to be discriminated on the basis of ‘sex’ which also includes ‘sexual orientation’ and Section 377 violated right to live with dignity and right to privacy which are important components under Article 21, i.e., Right to Life.
Recently a PIL was filed in Delhi High Court seeking declaration of the rights of marriage of the gay couples under The Hindu Marriage Act, 1955 stating that Section 5 of the Act, which lays down the conditions of a valid Hindu marriage, does not mention anywhere that a marriage is supposed to be solemnised between only a man and a woman. However, this plea for legalisation of same sex couples was opposed by Solicitor General Tushar Mehta, appearing for the Centre stating that, “These marriages run contrary to the provisions which are already in place in our society. Our values do not recognise a marriage, which is sacrosanct, between two people of same sex marriage.”[12]

Conclusion

This study has tried to give an air on the debate about whether the same sex marriage should be legalised or not. Legally, not providing the community with this fundamental Right to Life and Right to Equality is erroneous on many levels. However, we live in a society where we have to take into account the views of everybody equally.
While both of the authors actively support the rights of the LGBTQIA+ community, they have mixed views about the marriage of the same-sex couples. One of them believes that marriage for the same sex couples in an Indian society is a privilege reserved for the privileged people. Once they get this right, the support and the fight for various rights which the community still lacks would diminish. In India marriage is very casteist which would further push away the intersectional fight put forth for and by the DBA (Dalit, Bahujan, Adivasi) queers. The same sex marriage also doesn’t take into account the non-binary people of the community, once again being exclusionary and being a privilege fixed for the cis queers. The other author is of the view that legally this basic right should be given as at the end of the day, it’s their personal choice. But if it’s illegal, there’s no scope at all.
The former author also vehemently supports this motion but questions its effectiveness in a society where inter-faith and sometimes even inter-caste marriages are shamed. She believes that if we are provided with lawfulness of such marriage, there should also be a provision by the Constitution to prevent atrocities because its normalisation is going to be difficult in a conservative society like ours. No matter what theoretical evidences suggest, some practical questions are still answered with ambiguity–even though same-sex marriage is a great idea, is our conservative society ready for a change this huge? Will we be able to provide such couples with a safe environment? Will they be able to lead their lives with the same amount of dignity as other people?


References

1. Navtej Singh Johar v. Union of India, Writ Petition (Criminal) No. 76 of 2016.
2. Section 377 of Indian Penal Code, 1860.
3. Moksha Sanghvi, History of the Pride Movement in India, Deccan Herald (November 30, 2020), https://www.deccanherald.com/specials/history-of-the-pride-movement-in-india-742950.html.
4. WP (C) No. 7455/2001.
5. Civil Appeal No. 10972 of 2013 (Arising out of SLP (C) No. 15436 of 2009).
6. Writ Petition (Civil) no. 400 of 2012.
7. Epcbits, The History of the LGBTQ+ Movement in India, English Press Club (November 30, 2020), https://epcbits.wordpress.com/2020/06/08/the-history-of-the-lgbtq-movement-in-india/.
8. Writ Petition (Civil) No. 494 of 2012.
9. Universal Declaration of Human Rights, Article 16.
10. Ananthakrishnan G, Right to Marry Person of One’s Choice is Integral to Right to Life & Liberty: SC on Hadiya Case, The Indian Express (November 30, 2020), https://indianexpress.com/article/india/right-to-marry-supreme-court-hadiya-case-5131055/.
11. Saurabh Kirpal, India’s Constitution is Ready for Gay Marriage. Are India’s society and courts?, The Print (November 21,2020), https://theprint.in/pageturner/excerpt/indias-constitution-is-ready-for-gay-marriage-are- indias-society-and-courts/501145/.
12. LiveLaw.

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Anonymous
Anonymous
11 months ago

This article provides a very subtle idea and includes most of the features and facts . Great work

Dewanshi Agarwal
Dewanshi Agarwal
11 months ago
Reply to  Anonymous

Thank you so much!!

ABHISHEK KUMAR
ABHISHEK KUMAR
11 months ago

This research work is really very informative….😀

It cleared many of my doubts..

You guys are doing great job.. keep going and slowly you will learn and refine more….🤞🤞

Best of Luck..👍👍

Dewanshi Agarwal
Dewanshi Agarwal
11 months ago
Reply to  ABHISHEK KUMAR

Thank you sooo much 💜

Kaustubh Kumar
Kaustubh Kumar
11 months ago

It was much better than any article I read till date on this topic… Kudos to you guys!! 😊

Dewanshi Agarwal
Dewanshi Agarwal
11 months ago
Reply to  Kaustubh Kumar

Thank you!!!!! 😊

Richa Priya
Richa Priya
11 months ago

Good work..!! Short but informative. All the best for further articles.

Dewanshi Agarwal
Dewanshi Agarwal
11 months ago
Reply to  Richa Priya

Thank you so much Richa 💙

Devam Krishnan
Devam Krishnan
11 months ago

very lucid article
hats off to your work

Dewanshi Agarwal
Dewanshi Agarwal
11 months ago
Reply to  Devam Krishnan

Thank you!!! 😊

Shreya
Shreya
11 months ago

Great work👍all the best ⚡and let’s hope for the best 🥺

Dewanshi Agarwal
Dewanshi Agarwal
11 months ago
Reply to  Shreya

Thank you!!! Yes 🤞🏼

Dewanshi Agarwal
Dewanshi Agarwal
11 months ago

Thank you so much for this review. It is indeed helpful. We will definitely work on it

Nandita
Nandita
11 months ago

This is meticulously done. “Say what you wanna say and let the words fall out 🎼 ” 👏 you are brave.

priyal
priyal
11 months ago
Reply to  Nandita

loved the reference 😚 tysm

Shahreen Akhtar
Shahreen Akhtar
11 months ago

It’s really necessary to live and let live and love and let love same sex marriages relationships should be completely legal and should not be misunderstand as abnormality or disease it’s how people are its as simple as being straight . I strongly stand for same sex marriages and lgbt community support

Dewanshi Agarwal
Dewanshi Agarwal
11 months ago

Truly said!!! Thank you!!

Himanshu
Himanshu
11 months ago

I’m a budding lawyer. I do not read anything just for satisfying my literary greed but to gain something that I can use to make someone’s life better. Acknowledgment to the authors for not only focussing on the laws but also taking the study so deep that Aryans and Macaulay also marked their presence. At last I would sincerely appreciate the message conveyed in the article.

Dewanshi Agarwal
Dewanshi Agarwal
11 months ago
Reply to  Himanshu

Yassss 🙌🏼 Thank you so much!!!!

Rajat tanwar
11 months ago

Wow! what an informative article ,you both have presented it in a nice way. Congrats priyal and dewanshi , hat’s off to you guys !

Dewanshi Agarwal
Dewanshi Agarwal
11 months ago
Reply to  Rajat tanwar

Thank you so much Rajat!!!

Sanjeev Kumar Singh
Sanjeev Kumar Singh
11 months ago

Really this article is a very in depth perspective and analysis of modern day Community behavior. Palak and all other associated with this article has done a wonderful job. Keep enlightening us.

priyal
priyal
11 months ago

thank u

Kinshuk
Kinshuk
11 months ago

The detailed analysis in this work shows a glimpse of the hard work and efforts put in by Priyal and Dewanshi. Great work girls this was really eye opening

Dewanshi Agarwal
Dewanshi Agarwal
11 months ago
Reply to  Kinshuk

Thank you so much!!!!!