Legalising Same-Sex Marriage

[vc_section][vc_row][vc_column width=\”1/2\”][vc_column_text css=\”.vc_custom_1671197111900{border-top-width: 1px !important;border-right-width: 1px !important;border-bottom-width: 1px !important;border-left-width: 1px !important;padding-top: 20px !important;padding-right: 20px !important;padding-bottom: 20px !important;padding-left: 20px !important;background-color: #434a9b !important;border-left-color: #434a9b !important;border-left-style: solid !important;border-right-color: #434a9b !important;border-right-style: solid !important;border-top-color: #434a9b !important;border-top-style: solid !important;border-bottom-color: #434a9b !important;border-bottom-style: solid !important;}\”]1.  Expert in Panel:

  • Priya Hingorani, Senior Advocate, Supreme Court
  • Reena Rai, Founder & Chairperson, Miss Trans Queen India (LGBTQ+ Activist)
  • V. Rajyalakshmi, Department of Sociology, JDMC, University of Delhi

[/vc_column_text][vc_column_text]1. Reason for being in the news

The Supreme Court on Friday issued notice to the Centre Govt on a plea by two gay couples seeking recognition of same-sex marriage under the Special Marriage Act, 1954. The petition drew on earlier landmark rulings including one declaring privacy a fundamental right and another that decriminalized gay sex in 2018. In 2021 central Government had opposed same sex marriage in Delhi High Court stating that a marriage in India can be recognised only if its between a biological man and biological woman capable of producing children. In its argument then Central govt had also said that considerations of “societal morality” are relevant in considering the validity of a law and it is for the Legislature to enforce such societal morality and public acceptance based upon Indian ethos. Centre has to now file its response on this matter before the Supreme Court in four weeks.

2. Discussion

2.1. Special Marriage Act (SMA), 1954?

Marriages in India can be registered under the respective personal laws Hindu Marriage Act, 1955, Muslim Marriage Act, 1954, or under the Special Marriage Act, 1954. It is the duty of the Judiciary to ensure that the rights of both the husband and wife are protected. The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for civil marriage for people of India and all Indian nationals in foreign countries, irrespective of religion or faith followed by either party. When a person solemnises marriage under this law, then the marriage is not governed by personal laws but by the Special Marriage Act.

What Does LGBTQ+ Mean?

  • L (Lesbian): A lesbian is a woman/woman-aligned person who is attracted to only people of the same/similar gender.
  • G (Gay): Gay is usually a term used to refer to men/men-aligned individuals who are only attracted to people of the same/similar gender. However, lesbians can also be referred to as gay. The use of the term gay became more popular during the 1970s. Today, bisexual and pansexual people sometimes use gay to casually refer to themselves when they talk about their similar gender attraction.
  • B (Bisexual): Bisexual indicates an attraction to all genders. The recognition of bisexual individuals is important, since there have been periods when people who identify as bi have been misunderstood as being gay. Bisexuality has included transgender, binary and nonbinary individuals since the release of the \”Bisexual Manifesto\” in 1990.
  • T (Transgender): Transgender is a term that indicates that a person\’s gender identity is different from the gender associated with the sex they were assigned at birth.
  • Q (Queer or Questioning): Though queer may be used by people as a specific identity, it is often considered an umbrella term for anyone who is non-cisgender or heterosexual. But it is also a slur. It should not be placed on all members of the community, and should only be used by cisgender and heterosexual individuals when referring to a person who explicitly identifies with it. Questioning refers to people who may be unsure of their sexual orientation and/or gender identity.
  • + (Plus): The \’plus\’ is used to signify all of the gender identities and sexual orientations that are not specifically covered by the other five initials. An example is Two-Spirit, a pan-Indigenous American identity.

Brief History of LGBT Rights and Laws in India

  • In Ancient & Medieval India
    • Before the imposition of colonial-era laws under British rule, India had its own texts, which detailed the practice of homosexuality and same-sex intercourse.
    • As far back as 400 BC, the Kama Sutra, said to be written by Indian philosopher Vatsyayana, describes homosexual acts in detail, including explicit instructions on how to perform such acts. It describes men who have sex with men, women who have sex with women, as well as bisexuals, transgender persons, and intersex persons.
    • Meanwhile, in South India, the oldest of Tamil texts, Tamil Sangam literature from 3 BC to 4 AD, included descriptions of man-on-man relationships and relationships between transgender people.
    • Other ancient texts like the Arthashastra, Nardasmriti, and Sushruta Samhita also mention different types of same-sex relationships. In Indian mythology, there are tales of Vishnu who turned himself into Mohini to seduce demons and sages.
    • But as much as some myths and ancient texts detailed, and even instructed, on LGBT relationships, other texts like the Manusmriti derided the same.
    • The Manusmriti, for example, detailed punishments like shaving the head of a woman or cutting off her fingers, as punishment for engaging in lesbian intercourse.
    • Apart from the texts, the walls of ancient architecture are the second source of information about ancient India\’s thoughts on sexuality, wrote author and mythologist Devdutt Pattanaik in a 2008 article titled \’Did Homosexuality exist in ancient India?\’.
    • For example, the temples of Khajuraho, depict same-sex relationships and bisexual relationships, as well as other acts of what was till a while ago termed \”unnatural intercourse.\”.
    • In India during Mughal rule, \”unnatural intercourse\” was prohibited under the Fatawa\’ Alamgiri, a unified code of guidance based on Sharia law. It included punishments such as lashings for engaging in homosexual intercourse.

Brief History of LGBT Rights and Laws in India

  • Pre-Independence India
    • The first codified legislation on homosexuality in India was Section 377 of the IPC. From 1861 to 2018, for nearly 157 years, being a queer person in India could land you in jail for 10 years for the \”unnatural offence\” of having \”carnal intercourse against the order of nature.\”
    • The law that enabled this was drafted by Lord Thomas Babington Macaulay, as Section 377 of the IPC, when India was under colonial rule. The law allowed the judiciary to \”punish\” LGBT individuals with up to 10 years in jail as well as a fine.
    • The text of Section 377 of the IPC remained deliberately vague to be applied on a case-by-case basis to any \”carnal relationships against the natural order\”. This extends to gay, lesbian, bisexual, and trans relationships, as well as acts like bestiality and sodomy.
    • Pattanaik added that Section 377 and other homosexuality laws in India were \”products of minds that were deeply influenced by the \’sex is sin\’ stance of the Christian Bible.\”
    • Even in the years just prior to Independence in 1947, being outspoken about \”unnatural sexuality\” was often met with harsh consequences under the law.
    • For example, Indian Urdu novelist Ismat Chughtai was charged for obscenity after she released her work Lihaaf, a story about a neglected wife and lesbian love. Lihaaf would go on to become one of Chughtai\’s most famous works, even inspiring the 1996 movie Fire.

Brief History of LGBT Rights and Laws in India

  • Post-Independence India\’s Laws
    • After Independence and Partition, both India and Pakistan adopted their respective versions of the original IPC as the Indian Penal Code and the Pakistan Penal Code.
    • Section 377 would continue to stay in effect for over 60 years with no successful contention. Till 2001, when the Naz Foundation, an NGO that works with HIV+ patients and sexual health, filed a Public Interest Litigation (PIL) challenging the clause as violative of the fundamental right against discrimination enshrined in the Constitution of India.
    • In the years leading to this, members of the LGBT community faced persecution and ostracism in many forms.
    • For example, in 1987, police officers Leela and Urmila from Madhya Pradesh\’s Bhopal were sacked as law enforcement authorities after getting \”married\” and coming out as a lesbian couple. In 1990-91, the decline of India\’s economy and mounting debt led to liberalisation and globalisation. This ushered in many Western influences, including the presence of western NGOs, many which sought equal rights for LGBT individuals. Simultaneously, the rise of HIV AIDS, largely in the gay community, demanded a better outreach programme to limit the spread of the disease.
    • These two together would lay the groundwork for the legal changes of the next 20 years.

Brief History of LGBT Rights and Laws in India

  • Dawn of a New Millennium for LGBT Rights
    • In 2009, the Delhi High Court, in Naz Foundation vs NCT of Delhi, ruled that Section 377, which criminalised same-sex relationships, was unconstitutional, and struck the law down, decriminalising homosexuality in India for the first time.
    • The HC held that penalising such actions violated the right to privacy and personal liberty under Article 21 of the Constitution. Doing so was also found to fall foul of the right to equal treatment (Article 14) and the prohibition of discrimination (Article 15).
    • The verdict, which was hailed as a victory for LGBT rights, was challenged by several anti-gay rights groups on religious, political, and social grounds, who claimed that the right to privacy did not include the right to commit an offence, and that decriminalising homosexuality would affect the institution of marriage.
    • In 2013, in Suresh Koushal and Anr vs Naz Foundation and Others, the SC reversed the Delhi HC\’s decision to decriminalise homosexuality, stating that \”it was up to the Centre to legislate on the issue.\”
    • This decision would lead to protests across the country, with the Aam Aadmi Party, the Indian National Congress, and the Communist Party of India (Marxist), making the decriminalisation of homosexuality a part of their election manifesto in the 2014 general Assembly elections.
    • Jump to 2018, and a five-judge SC bench, which included the then-Chief Justice Dipak Misra, would pass a historic order. The verdict came in a petition by Indian choreographer Navtej Singh Johar and 11 others challenging the constitutional validity of Section 377.
    • On 6 September 2018, the SC read down the provisions of the clause inasmuch as they pertain to consensual same-sex relationships.
    • The change in law was welcomed by the LGBT community, and hailed as a victory for LGBT and human rights.

*Source: The Quint

2.2. Problems Faced by LGBTQ+ Communities in India

2.2.1. Marginalisation:

LGBTQ+ individuals may experience multiple forms of marginalization – such as sexism, poverty, discrimination, social unacceptability or other factors – alongside homophobia or transphobia that negatively impact their mental health. Often, such marginalisation leaves LGBTQ+ people without access to the basic services such as medical care, justice and legal services, and education.

2.2.2. Impact of Family Reactions on LGBTQ+ Children:

Rejection and serious negative reactions kept many LGBTQ+ youngsters from telling their parents about their feelings. In a society bound by a rigid set of social and cultural norms that dictate the terms and conditions of education, career and marriage, the lack of family support can prove to be a big blow to the mental and physical health of LGBTQ+ people.

2.2.3. Problems of Terminology:

LGBTQ+ people are labelled with negative stereotypes and made fun of, thereby robbing them of their goal of getting recognition and making them feel socially excluded.

2.2.4. Socially Unrecognised:

School uniforms, dress code, and appearance, access points for travel (including ticket booking forms, security screening, and toilets) are often gendered. Frequently, LGBTQ+ individuals are forced to negotiate their gender identity in public while on public transportation. As a biological term, sex is always Male, female or transgender. However, as a social category, gender may vary.

2.3. Path to Legalisation

After India\’s Supreme Court decriminalised homosexuality, many have raised the question of taking a step towards legalising same-sex marriage. The SMA is a law that was passed originally to legalise interfaith unions. Now, LGBTQ+ couples are arguing their marriages should be recognised under the SMA. Although awareness about the LGBTQ+ community has increased in India, there is still stigma and resistance to complete acceptance. So far, 33 countries around the world have recognized same-sex marriage and civil unions.

Along with not recognising same-sex marriages, Indian law does not provide for civil unions. Gay and lesbian couples are also not allowed to have children born with the help of an Indian surrogate mother. An LGBTQ+ person can apply to Central Adoption Review Authority for adoption only as a single parent.

2.4. Status of Marriages in India

The right to marry is not expressly recognized either as a fundamental or constitutional right under the Indian Constitution. However, same-sex marriage is also not legalized in India.

Though marriage is regulated through various statutory enactments, its recognition as a fundamental right has only developed through judicial decisions of India’s Supreme Court. Such declaration of law is binding on all courts throughout India under Article 141 of the Constitution.

2.4.1. How can Same-sex Marriage be Recognised Legally?

Legality of same-sex marriages can be achieved using either of the following approaches: Interpreting the current legislation in order to legalise partnership unions of same genders lawfully. Defining the LGBTQ+ culture as a separate category and whose practices provide for relationships with the same genders. To legalise marriages between the same genders, Special Marriage Act, 1954 can be amended.

2.5. Way Forward

2.5.1. Anti-discrimination Law:

The LGTBQ+ community needs an anti-discrimination law that empowers them to build productive lives and relationships irrespective of gender identity or sexual orientation and places the onus to change on state, society and the individuals also.

2.5.2. Elimination of Distinctness:

The introduction of same-sex marriage would help reduce these forms of prejudice against LGBTQ+ people because it would eliminate the official “otherness” status of LGBTQ+ people.

2.5.3. Full Scope of Rights:

Once members of the LGBTQ+ community “are entitled to the full range of constitutional rights”, it is beyond doubt that the fundamental right to marry a person of one’s own choice has to be conferred on same-sex couples intending to marry.

2.5.4. Creating Awareness and Empowering LGBTQ+ Youth:

An open and accessible forum is needed so they feel recognized and comfortable sharing their feelings. Platforms like Gaysi and Gaylaxy have helped carve out spaces for LGBTQ+ people to interact, share and collaborate. The Pride Month and Pride Parade Initiative is also a good step in this direction.[/vc_column_text][/vc_column][vc_column width=\”1/2\” is_sticky=\”yes\” sticky_min_width=\”767\” sticky_top=\”130\” sticky_bottom=\”0\”][vc_custom_heading text=\”Perspective : Legalising Same-Sex Marriage | 26 November, 2022\” font_container=\”tag:h2|font_size:24PX|text_align:center|color:%23ffffff|line_height:34PX\” use_theme_fonts=\”yes\” css=\”.vc_custom_1671197070603{margin-top: 0px !important;margin-bottom: 0px !important;padding-top: 10px !important;padding-right: 10px !important;padding-bottom: 10px !important;padding-left: 10px !important;background-color: #434a9b !important;}\”][vc_video link=\”\” css=\”.vc_custom_1671197055069{margin-top: 0px !important;padding-top: 0px !important;}\”][/vc_column][/vc_row][/vc_section]

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