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A PATH TO EQUALITY: THE UNFOLDING NARRATIVE OF SAME-SEX MARRIAGE IN INDIA

INTRODUCTION

Same-sex marriage is the practice of marriage between two men or two women. It is also known as homosexual marriage or gay marriage.[1] Although same-sex marriage has been regulated through law, religion and custom in most countries of the world, the legal and social responses have ranged from celebration on the one hand to criminalization on the other. Homosexuality has been decriminalized in 133 countries however there are only 34 countries in the world that legalized same-sex marriage with the last being Andorra.[2] By analysing recent developments and considering diverse perspectives, this blog examines the multifaceted dimensions of same-sex marriage in India, exploring the legal framework and the challenges faced by the LGBTQ+ community.

HISTORICAL CONTEXT AND LEGAL ADVANCEMENTS

In ancient texts like the Rig Veda and records dating back to around 1500 BC, depictions of sexual activities involving women were portrayed as celebrations within a feminine world of joy and fertility. There is also documented evidence of homosexual activities during the Muslim Medieval period, including depictions of such encounters in the Kamasutra and instances of young boys being held by Muslim nawabs and Hindu aristocrats. These instances provide evidence of homosexuality within these historical contexts, particularly within the Tantric tradition relationships. However, the significance of these encounters began to diminish with the rise of Vedic Brahmanism and later British colonization.[3] During British rule, they introduced section 377 in IPC 1860, a provision that criminalized same-sex acts.[4] Even after India gained independence in 1947, this archaic law endured, subjecting LGBTQ+ individuals to a legacy of discrimination and persecution spanning over a century.

PRESENT SCENARIO

In present India, the legal status of same-sex marriages is currently non-existent, although continuous endeavours are being made to acknowledge and legalize them. However, the late 20th century witnessed a remarkable surge in the LGBTQ+ rights movement. In the 1990s, the emergence of the AIDS Bhedbhav Virodhi Andolan (ABVA) in Delhi marked a transformative milestone, as it became the first LGBTQ+ organization devoted to combating discrimination and violence. In 2001, the Naz Foundation, took a bold step by filing a PIL in the Delhi High Court, challenging the constitutional validity of Section 377.[5] A significant breakthrough arrived in 2009 when the Delhi High Court delivered a landmark judgment, declaring Section 377 unconstitutional and effectively decriminalizing homosexuality. Regrettably, this triumph was short-lived, as the Supreme Court reversed the ruling in 2013, reinstating the provision of Section 377. However, in a historic turn of events, 2018 witnessed a watershed moment for LGBTQ+ rights in India. A five-judge bench of the Supreme Court unequivocally declared Section 377 unconstitutional in Navtej Singh Johar v. Union Of India,[6] which regained hope and a new era of freedom. This key decision marked a resounding victory for LGBTQ+ rights and represented considerable progress towards eradicating discrimination and promoting equality in the nation.

ARGUMENTS IN FAVOUR OF SAME-SEX MARRIAGE

Challenging the legitimacy of same-sex marriage based on the groundless notion that it will lead to the extinction of humanity is devoid of merit. The existence of adoption and surrogacy provides viable avenues for queer couples seeking to nurture their own families. Marriage equality is driven by the fundamental need for legal safeguards, particularly among marginalized individuals facing economic dissimilarities. Branding it as an exclusive concern of urban nobility is a deceptive mischaracterization, as exemplified by the discriminatory ordeals endured by LGBTQIA+ individuals like Leela and Urmila, two policewomen who were subjected to suspension and imprisonment merely for their marriage in 1987.[7] In the pursuit of genuine equivalency, it is imperative to extend the provisions of the Special Marriage Act to encompass queer Indians, employing gender-neutral language such as “spouse.” The recognition of cohabitation as a fundamental right, even if not explicitly equated to marriage, bears tremendous societal significance. The acceptance of same-sex relationships may appear to challenge long-held traditional values, it contributes to the diverse relationships that thrive within society. The Supreme Court affirmed the freedom of same-sex couples to lead lives characterized by dignity and privacy. Furthermore, the Supreme Court has underscored that gender transcends simplistic biological categorizations, defying the confines of a rigid binary framework. By denying same-sex couples the right to marry, an invocation of essential legal benefits is unjustly withheld. Marriage encapsulates not only dignity but also an encompassing array of rights, representing a cornerstone of societal well-being.

ARGUMENTS AGAINST THE SAME-SEX MARRIAGE

India’s legal framework for marriage, succession, and adoption stands in contrast to many liberal democracies as it predominantly relies on religious personal laws. Proposed changes to the traditional definition of marriage, which has long been understood as the union between a man and a woman, raise concerns about potential negative societal consequences. The Union government, in its submission to the Supreme Court, emphasizes that recognizing same-sex marriages could disrupt the existing system of personal laws and asserts that decisions about marriage should be entrusted solely to Parliament and the executive branch as matters of policy. Advocates of maintaining the status quo argue that the welfare of children is best served by being raised by opposite-sex parents, and thus legalizing same-sex marriages may jeopardize their well-being. Furthermore, the legalization of same-sex marriages may introduce complex legal implications, particularly regarding adoption and child custody, necessitating careful consideration. Given the limited acceptance of same-sex marriage in Indian society, the potential for social unrest and disruption of established social norms and values cannot be overlooked.[8]

OVERCOMING CHALLENGES: A FUTURE ANCHORED IN HOPE AND PROGRESS

Legal Challenges: LGBTQ+ activists and organizations have relentlessly fought against the discriminatory Section 377 of the Indian Penal Code, which criminalized homosexuality. Their unwavering commitment culminated in a watershed moment in 2018 when the Supreme Court struck down this law, heralding a monumental victory for LGBTQ+ rights and effectively decriminalizing homosexuality in India.

Advocacy and Awareness: The LGBTQ+ organizations have fervently embraced the cause, tirelessly advocating for increased rights and comprehensive protections for the LGBTQ+ community. Through rallies, protests, and campaigns, they have illuminated the challenges faced by LGBTQ+ individuals, propelling a powerful message of equality and fostering societal acceptance. These collective efforts endeavour to nurture a society that embraces and respects diverse sexual orientations, nurturing empathy and understanding for the LGBTQIA+ community.

Policy and Legal Reforms: Organizations like the Naz Foundation play a crucial role in advocating for policy and legal reforms that protect the rights of LGBTQ+ individuals. They work tirelessly to establish strong laws against discrimination, inclusive policies, and legal recognition of same-sex relationships, including marriage. They are dedicated to amending existing laws, such as the Special Marriage Act, to enable same-sex couples to marry and enjoy equal rights and benefits.

Counselling and Support: Recognizing the unique challenges faced by the LGBTQ+ community, several organizations provide specialized counselling and support services. These invaluable resources offer a haven where individuals can address issues such as discrimination, bullying, and mental health concerns, providing guidance and solace.

Community Building: LGBTQ+ organizations focus on building a strong and welcoming community. They achieve this by organizing various events, social gatherings, and support groups. These initiatives help individuals feel like they belong, develop resilience, and form close bonds within the LGBTQ+ community. Ultimately, their efforts create a lively and secure space where everyone can thrive.

CONCLUSION

The unfolding narrative of same-sex marriage in India serves as an excellent testament to the remarkable journey towards societal equality and human rights. It embodies the triumph of love, resilience, and the indomitable spirit of the LGBTQ+ community and their allies. The pivotal 2018 Supreme Court ruling, which decriminalized homosexuality, marked a historic turning point, igniting a wave of transformation. Despite challenges, passionate advocates, organizations, and individuals have tirelessly pursued the recognition and acceptance of same-sex marriages. However, the pursuit of full equality remains an ongoing struggle that necessitates continued dialogue, education, and empathy to eradicate discrimination and foster genuine inclusivity. As we envision a society where love knows no bounds, let us forge ahead with unwavering determination, dismantling barriers, and creating a world where same-sex couples are unequivocally embraced, their love cherished, and their marriages legally protected.

Author(s) Name: George Joseph (Mahatma Gandhi University, Kerala)

References:

[1] Cornell Law School Legal Information Institute, ‘Same-Sex Marriage’, in Legal Information Institute (n.d.) https://www.law.cornell.edu/wex/same-sex_marriage accessed 09 June 2023

[2] Deccan Herald, ‘Which countries in the world allow same-sex marriage?’, Deccan Herald (29 March 2023) https://www.deccanherald.com/amp/national/which-countries-in-the-world-allow-same-sex-marriage-1199817.html accessed 09 June 2023

[3] India Today, ’10 instances of homosexuality among LGBTs in ancient India’, India Today (10 July 2018) https://www.indiatoday.in/india/story/10-instances-of-homosexuality-among-lgbts-in-ancient-india-1281446-2018-07-10 accessed 09 June 2023

[4] Indian Penal Code 1860

[5] Naz Foundation v Government of NCT of Delhi and others, WP(C) no 7455/2001

[6] Navtej Singh Johar & Ors v Union of India Thr Secretary Ministry of Law and Justice, WP(Crl) no 76/2016

[7] Apurva Vishwanath, ‘Supreme Court same-sex marriage hearing: What is the Centre’s stance on the matter?’ Indian Express(28 April 2023)

[8] The Indian Express, ‘SC same-sex marriage: Here are the arguments over 10 days’, The Indian Express (15 May 2023) https://indianexpress.com/article/explained/explained-law/sc-same-sex-marriage-here-are-the-arguments-over-10-days-8609177/ accessed 09 June 2023