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A MIRROR IMAGE: SOCIETY’S RELUCTANCE AND THE JUDICIAL IMPACTS ON LEGALISATION OF GAY MARRIAGES IN INDIA

INTRODUCTION

The sound of wedding bells chimed over Telangana in December 2021 as the “First gay couple,” Abhay Dange and Supriyo Chakraborty, got married after eight fruitful years of relationship. The duo were grateful to be able to hold the ceremony and mentioned how supportive their parents had been throughout their relationship as stated in their interview to NDTV. While on the other hand, Adhila and Fathima fell in love but faced harsh backlash from their family members. The Kerala High Court ruled in their favour after they were forcefully separated. The couple recently exchanged rings to commemorate their love. Adhila Nasarin stated that while now they have just exchanged rings they would want to be married at some point. As we witness acceptance and celebration of love, but on the other, we see abomination towards a couple separated by their families who just so happen to love each other regardless of gender. But from the judicial perspective while Kerala HC did great work by ruling in favour of the couple  I can’t help but notice that there remains a paucity of the legal rights of the LGBTQ community of India. Our legislation still remains silent on the legalisation of same-sex marriages which should have been done much earlier given when India took a progressive stance in September of 2018 when the Apex court partially decriminalised Section 377 of IPC , consensual homosexual relationships were legalised and the 157 years old colonial-era law was finally struck down. But now A raft of petitions are arguing that barring them from marriage violates their right to equality of which the first petition was filed by the Telangana couple Dang and Chakraborty for their union to be recognised under the Special Marriage Act ( SMA).

The judiciary and our society are mirror images of one another. For the stability of society, laws are formed, and the court plays a significant part in this process. Can we see the legalisation of gay marriage given internalised homophobia and the heteronormative framework of our society? This article will examine how society’s resistance to embracing members of the LGBTQ community has a big influence on the legalisation of same-sex unions and examine the judicial strategy.

SOCIETY’S UNWILLINGNESS TO ACCEPT THE QUEER: HOW IT ALL BEGAN

We must first familiarise ourselves with the LGBTQ population’s past in our nation in order to comprehend society’s viewpoint towards them and the difficulties they confront today. In Ancient India, queer people participated in its rich history and traditions and were welcomed as members. One tiny example would be that once a newborn entered a family, the “Hijras” blessings were regarded as auspicious for the child’s future. Additionally, themes and personalities relating to homosexuality have appeared in our sacred religious scriptures thus people were aware of this concept. The Rigveda containing the phrase Vikriti Evan Prakirti meaning ‘what seems unnatural is also natural and the magnificent  temples of Madhya Pradesh with their overtly erotic sculptures showing the presence of sexual activity among homosexuals and the book of Kamasutra are a few examples of homosexuality being accepted in India.

However, during the colonial era, things started to change. In 1861, after the arrival of Britishers, sexual activities “against the order of nature” including all homosexual activities were criminalized under section 377 of the Indian Penal Court. In generally accepted Catholic theology, any sexual act that does not promote procreation is a sin and must be abhorred since the natural order promotes procreation and the expansion of human civilisation. Thus, Sec 377 of the IPC, or “Unnatural Offences,” was enacted and homosexuality became a crime.  Sec 377 was inspired by the Buggery Act Of 1533 formulated by Lord Thomas Macauley. It criminalised anal penetration, bestiality and homosexuality in a larger sense as all constitute an unnatural sexual act against the will of God and man. One major issue with this act was that it criminalised even the consensual sexual activities that happened between willing adults of the LGBTQ community. Influenced by the gradual spread of the law and Catholic culture, the once-tolerant society where gender fluidity was welcomed saw contempt and scorn rise against the queers and rose the idea of a heteronormative societal outlook that slowly gained traction in India.

CHALLENGES FACED BY THE LGBTQ COMMUNITY OF INDIA

Following the deep internalisation of heteronormativity queer community dealt with a number of challenges which are as follows-

  1. Fear of non-acceptance- Homosexuality is a taboo subject in Indian society, and many are afraid of “coming out” to their families for fear of being rejected. The consequences of coming out are that it results in the stigmatisation of LGBT people majorly through parental reaction w.r.t homosexuality. Prince Manvendra Singh Gohil whose own story of coming out is well documented suggests that it is better to detach oneself financially and emotionally from family members before one takes the decision of declaring their sexuality.
  1. Conversion therapy- This phenomenon is observed in rural and semi-urban areas where families have sent their wards to forcefully undergo psychiatric treatment to be converted to ‘normal’. Mogli recalls her experience as she says, “I was given psychotic medicines, which made me depressed and confused. I was coerced into participating in cruel psychosexual tests by the psychiatrist, who kept me with other mentally ill women. She was interested in how I would react to their interaction and advances.”
  1. Honour killings- Witnessed widely in the rural parts of India is a form of punishment where queer people are killed at the hands of their own family in order to protect the family’s honour in society is a clear case of murder on these innocent souls.
  2. Discrimination in the workplace- People in urban areas with social media impact have an increased awareness towards the queer community but there are still instances of workplace harassment and bullying of gays by calling them slurs like ‘chakka, hijras’. In a study conducted to find the attitude of Indian youth towards homosexuality. It was found that the implicit attitude of the majority of the participants (60 out of 100) was negative towards gay people.

LEGISLATION ON RIGHTS OF LGBTQ AND THE JUDICIARY

Things started to take a turn for the good in the 2018 case of Navtej Singh Johar vs UOI where      Sec 377 was partly de-criminalised. The five-judge bench quoted a previous case of NALSA which was instrumental in recognising transgender citizenship and focused on the ‘importance of identity’ for an LGBTQ person. Adhering to a sexual preference different from the accepted societal standard is a part of that person. Destruction of individual identity would be tantamount to the crushing of intrinsic dignity that cumulatively encapsulates the values of privacy, choice, freedom of speech and other expressions. This case was pivotal in legalising all acts of consensual sex between homosexual couples and has been lauded by the LGBTQ community. The judgement also shed light on the constitutional rights guaranteed to every citizen of India and made it clear that by the virtue of Art 14, 15, 19 and 21 queer people have the decision to make sexual relations.

After Navtej Singh in 2019, The Transgender persons (Protection of Rights) Act, 2019 gave protection of law to transgenders from acts of discrimination and violence. Alongside these progressive measures, it is commendable to see that Indian Judges are acknowledging their ignorance towards queer people and are trying to fight the prejudice for the sake of proper justice as seen by Madras High Court Judge Anand Venkatesh’s actions of banning gay conversion therapies and raising awareness on LGBT+ rights.

But talks of legalising same-sex unions are kept at arm’s distance, the judiciary and our society are yet to fully digest the LGBTQ phenomenon given it does not fit into the accepted norms of today’s time. This is evident from the response to the petitions the government made its stance clear that courts should refrain from legitimising same-sex marriage. By this, we intentionally limit the marital rights of LGBT people by citing the need to “preserve societal morality” and work in the best interests of the state. But an opposite stance has been taken by NCP Supriya Sule in the parliament by introducing a bill which duly stated that- “notwithstanding anything contained in this Act or any other law for the time being in force, a marriage between any two persons of same-sex may be solemnised under this Act”.

CONCLUSION

In terms of accepting homosexuality, India has advanced the rights of the LGBTQ community via law and judicial decisions. Nevertheless, despite the debate over legalising same-sex unions and the introduction of a Lok Sabha bill on the issue, we must recognise that our culture still has a conservative bent and that such a huge shift will result in considerable upheaval. Same-sex unions cannot be fully acknowledged reality until the judiciary and society are in perfect concord.

Author(s) Name: Avantika Mandar Chavan (O.P Jindal Global University)