Decriminalization of Section 377 IPC: Securing Right and Social Inclusion of LGBTQ+

By: Nitya, ICFAI Law School, Dehradun

Introduction

Granting ‘Marriage rights’ to the LGBTQ+ community has been a widely debated topic and has evoked a lot of religious antagonisms, because of the prejudiced and orthodox notion of the Indian society, that claims ‘Homosexual Relationships’ to be ‘Immoral and against their respective Cultures and Religions’.1

Such ideology has clearly emanated from the ‘Christian Belief System’, brought by the Britishers during the colonial rule and has passed through generations because history has enough evidence and explicit tales to tell about the presence of homosexual relationships during the medieval and colonial times.2

Though Section-377 of the Indian Penal Code has been decriminalized, the LGBTQ+ community still struggle for some major ‘Civil Rights’ which they are deprived of, the prominent among which is that of ‘Marriage’, which is a path towards various other rights and can lead to their social and legal recognition’.

However, it has been found, that the contemporary Personal Laws in India including the Special Marriage Act, are ‘Hetero’ centric and do not allow ‘Homosexual’ marriage, which is clear discrimination against the aforesaid community, and a violation of Article-15 of the constitution.

This research work aims to highlight the importance of granting ‘Marriage Rights’ to the LGBTQ+ Community, and further points out the best way of granting such rights. The research also suggests that adopting a ‘Civil Partnership’ model is not a fair alternative.

The paper also finds out that, bringing amendments in the Special Marriage Act, 1954 to grant marriage rights to the aforesaid community is much more of a practical approach, rather than doing it by bringing amendments in various Personal Laws operating in India. 

Marriage Rights to LGBTQ+ Community-: A key to their Social Inclusion:

It has been years since the LGBTQ+ community has been fighting for their marriage rights. Well, the struggle is not merely for the legal recognition of their marriage but is also for making themselves entitled to various other rights that marriage comes along with, that are not available to the ‘Homosexual’ couples, as they lack the very marriage right.

The Homosexual couples just desire for inclusion and acceptance without discrimination and an option to have a legally recognized partnership. Well, there are some concrete and captivating, practical reasons to grant them the right to have a legally recognized marriage.3

Besides, marriage being their fundamental right, a legally recognized marriage could also help, pave a path for some other legal rights and various health, social and economic benefits, that can benefit same-sex couples leading to their social and legal recognition. So, what are those legal rights and benefits?

  • Presently, there are certain legal rights such as; maintenance, succession, pension, etc. that are enjoyed only by couples, who have a legally recognized marriage, and not by LGBTQ+ people, as do not have a legally recognized marriage.
  • Also, there are certainly economic benefits under laws like; the Employment Provident Fund Scheme, 1952 and Workmen’s Compensation Act, 1923, etc. which the people, only related either by blood or marriage enjoy.4
    Hence, he LGBTQ+ people are deprived of these benefits as well.
  • On the top of it, after the guidelines for adoption have been issued by the Central Adoption Resource Authority, single and unmarried couples have really found it difficult to adopt, and since, LGBTQ+ marriage is not recognized, hence they find it difficult to adopt as well.5
  •  Furthermore, there have been instances, where LGBTQ+ people have been suspended from their jobs, after their marriage, on the grounds that their marriage is neither recognized legally nor socially accepted.6

Thus, keeping in mind the above arguments, it could be said that marriage rights can pave a path for both legal and social recognition, further ensuring social security to LGBTQ+ people. However, according to some research scholars, one alternative to grant such legal and social recognition to the LGBTQ+ people, is not through ‘Marriage Rights’ but through ‘Civil Unions’, as done by many European and other countries such as; United States of America, Australia, New Zealand etc.7

But this is not a fair alternative, to move forward with.

Why adopting the ‘Civil Partnership’ model for the LGBTQ+ community is not a fair alternative?

“Marriage is not merely a contractual relationship that is forged for the partners to gain legal benefits and rights from one another. It has the equally important function of giving both legal and social recognition to a relationship”.8

There is absolutely no doubt that the ‘Civil Partnership’ model has advantages if implemented, especially in a country like India, where the society is slightly orthodox and prejudiced with respect to the LGBTQ+ community and their partnerships because it is likely to invoke less opposition on religious grounds and at the same time avoids the acrimonious debate as to whether ‘marriage’ is necessarily ‘heterosexual’.

However, such a model has some detriments as well. So, what exactly are its disadvantages as an alternative to marriage rights?

  • Firstly, the civil partnerships merely provide the community with an option that has a lower status than marriage, which itself is discriminatory in nature.9
  • Secondly, marriage as an institution has a certain cultural, historical, and social significance that civil-partnerships does not have. Hence, the two institutions do not fall on the same footing.10
  • Thirdly; if a civil-partnership model is adopted in India, it would not only require new legislation, governing civil unions, but also an amendment in various relevant legislation, such as the Indian Succession Act, 1925, Guardian and Wards Act, 1890, Workmen’s Compensation Act, 1923, and a host of other legislation relating to adoption, pensions, etc.
  • And above all, the ‘Civil Union’ model shall never provide the same social status to LGBTQ+ people, that marriage provides to ‘Heterosexual’ couples at present.11

Thus, seeking legislation to recognize Civil-Unions for the LGBTQ+ community is not a fair alternative. However, there is one other way for doing so, i.e. through the Personal Laws operating in India, which governs various religious communities. But, does the contemporary personal laws recognize homosexual marriages? 

Homosexual Marriage under the Personal Laws:

Indian Personal Laws v. LGBTQ+ ‘Marriage Rights’:

“To deny people their Human Rights is to challenge their very Humanity”.

-Nelson Mandela

While the LGBTQ+ community struggle hard for their civil rights, especially that of marriage, au contraire, this is also conspicuous that in India’s present societal array, marriage is referred to as a heterosexual institution associated with procreation.

However, the landmark judgments in the case of Naz Foundation v. Government of NCT of Delhi (12) and Navtej Singh Jauhar v. Union of India (13), are a major step towards changing the perception of same-sex unions in India, by recognizing the third gender category as well, hence making them entitled to all the human and fundamental rights. In spite of everything, the demand for legalizing homosexual marriages is giving birth to new friction in the institution of marriage, family, and law, which cannot be denied.14

Various religious communities present in India, are governed by their own Personal Laws, for the purpose of marriage, which envisage marriage between a ‘Man’ and a ‘Women’. However, none of these personal laws have explicitly defined ‘marriage’, as a ‘Heterosexual union’.15

So, what exactly manifests the heterosexual nature of these Personal Laws?

  • The Hindu Marriage Act, 1955 for example, represents Hindus, Sikhs, Jains, and Buddhists, and expresses that a marriage might be solemnized between any two Hindus. Further specifying in section-5(iii), “conditions for a Hindu Marriage” stating, that the ‘Bride’ and the ‘Bridegroom’ must have attained ‘Eighteen’ and ‘Twenty-one’ years of age respectively, for the purpose of marriage.16
    Here, the words ‘Bride’ and ‘Bridegroom’ obviously mean a ‘Heterosexual’ marriage.
  • Similarly, section-60 of the Christian Marriage Act, 1872, provides that the age of ‘Man’ and ‘Women’ should be ‘Twenty-one’ and ‘Eighteen’ respectively, for the purpose of marriage.17
    Hence, proving itself to be ‘Heterosexual’ in nature.
  • In the case of Muslims as well, marriages are considered to be a ‘Heterosexual Union’. Since they are not governed by any statue so they do not have a specific definition of marriage. But marriages among them are regularly thought to be an agreement, with the end goal of ‘procreation’, which highlights its heterosexual nature.

Thus, it could be conceived that all the Indian Personal Laws visualize marriage as a hetero partnership by using words like, ‘Bride and Groom’, ‘Husband and Wife’ etc, which clearly proves their ‘Heterosexual’ nature.

Having addressed different provisions of various Personal Laws above, it seems difficult to grant marriage rights to the LGBTQ+ communities under these laws, as they do not recognize ‘Homosexual Marriage’. However, according to some research scholars, one of the ways of doing so, is by bringing amendments in these personal laws. But it does not appear to be much of a practical approach.

Why bringing amendment in Personal Laws is not a practical approach?

“I’m equal towards all living beings, no one is hated by me and no one is beloved. Those who worship me with devotion, however, are in me, and I’m in them”.

-Bhagavad Gita 9.29

As found from various ancient and medieval researches and evidence, India really had a liberal, generally latitudinarian, humanistic, and diverse, range of attitudes towards all sexes, including ‘Homosexuality’, with some clear warnings about attachment, addiction, and obsession.18

Moreover, no Indian religion has ever explicitly censured homosexual unions and marriage. Furthermore, there are landmark verdicts by the Indian courts, which decriminalize Section-377 of the Indian Penal Code, and declares discrimination on the basis of sexual orientation as a violation of Article-15 of the Indian Constitution.19

But even yet, the Indian society continues to have a conservative view about homosexuality, which has emanated from the British ideologies that, “gay marriages and relationships are not compatible with nature and are not natural”.20

As a result of which, Indian society continues to consider it ‘immoral’ and ‘against their respective religions’. Also, they are not able to accept things, because of their prejudiced belief, that traditionally, Indian society didn’t recognize such relations.

Now, because of such an orthodox attitude of people, it is quite impractical and unfeasible to seek amendments in personal laws to grant recognition and marriage rights to the LBGTQ+ community, as it would lead to strong confrontation, leading to mass opposition and protests by various religious groups.

Also, an amendment might lead to ambiguity in various personal laws. Moreover, the Sharia law does not recognize homosexual marriages, therefore Muslims cannot perform ‘Homosexual Marriages’ if they go with their personal laws, and bringing an amendment in Muslim Personal Laws is again a challenging task as it is considered to be a direct revelation from Allah.21

Furthermore, people might consider an amendment in their personal laws as an attack on religious sentiments. Hence an amendment in the personal laws for granting rights to the LGBTQ+ people does not appear to be a practical approach. 

Nevertheless, taking into consideration the above arguments, the most feasible alternative, that could probably happen to be the most effective one for the purpose of granting marriage rights to the LGBTQ+ people, is an amendment to the Special Marriage Act, 1954.22

Amendment in Special Marriage Act-: The most feasible way to grant marriage rights to LGBTQ+ people:

“Legislation and Adjudication must follow and conform to, the progress of society”.

-Abraham Lincoln.

As already pointed out and discussed above, bringing amendments in the personal laws regarding LGBTQ+ marriage, prima facie can lead to mass opposition by various religious communities and could hurt the religious sentiments of a lot of people, because of the prejudiced notion of society regarding the LGBTQ+ community.

Hence, the only feasible way to grant marriage rights to the aforesaid community is by bringing an amendment in the Special Marriage Act, 1954, that ought not to invoke any religious antagonism, as it does not bind people to any sought of religious restrictions, and could be used by people who do not want themselves to be bound by their personal laws.

Also, the marriage is registered by a marriage registrar, unlike the personal laws that talk about religious ceremonies for the purpose of marriage, hence, leading to an easy execution of civil marriage.23

However, in spite of the secular character of the said Act, which even permits inter-religious marriage, it still appears to be ‘Hetero’ oriented, hence discriminating against ‘Homosexual’ people.24

This could be proved by reading down the provision under Section-4(c) of the said Act, which says that, “the ‘male’ and ‘female’ must have attained the age of ‘twenty-one’ and ‘eighteen’ years respectively, for the purpose of marriage”.25

Herein, the terms ‘Male’ and ‘Female’, clearly depicts that the Act is ‘Heterosexual’ in nature and does not recognize ‘Homosexual’ marriage. How to eradicate this discrimination against ‘Homosexuals’ then?

Acclimatizing same-sex marriage within the framework of the Special Marriage Act, 1954, is however not difficult. All that it requires is an amendment in Section-4(c) so that the provision reads as;

  •  “the parties if ‘males’ and if ‘females’ must have attained the age of ‘twenty-one’ and ‘eighteen’ years respectively, for the purpose of marriage”, and to incorporate a provision that ‘Same-sex marriages are permitted’;
  • also, the term ‘Sodomy’ as mentioned under Section 27(1-A), should be described in a much clearer manner, as it has been decriminalized by the court. 
  • the terms ‘Husband’ and ‘Wife’ should also be interpreted with respect to the LGBTQ+ people, in the Special Marriage Act, 1954.

The Special Marriage Act, 1954, thus, needs to manifest its compliance to Article-15 of the Indian Constitution, by permitting same-sex marriages on the grounds that it would otherwise be discriminatory against same-sex couples, hence violating Article-15.

Conclusion and Suggestions:

“Legislation should be the voice of a reason”.

-Pythagoras of Samos.

The above discussions have made the importance of granting ‘Marriage Rights’ to the LGBTQ+ community clear, along with some suggestions as to rectifications required in the contemporary Indian laws for the purpose of granting such rights to them.

The challenge however is that granting marriage rights and giving social and legal recognition to the aforesaid community is not easy in a traditional society like India as it has been in western. But keeping that aside, it is high time that the Legislature comes up with a concrete solution regarding the same, maybe by the way of bringing amendments in the Special Marriage Act, 1954, as suggested.

There are several international precedents in support of the proposition that ‘a marriage law that did not permit same-sex couples to marry, was unconstitutional’.26

The same proposition should be followed in India to amend the Special Marriage Act, 1954 on the grounds that, if secular legislation like the Special Marriage Act, permitted marriage only between couples of the opposite sex, it would be discriminating against the same-sex couples on the basis of sexual orientation, and such discrimination would be in violation of Article-15 of the Constitution, hence, unconstitutional.27

Also, similar provisions regarding ‘Marriage rights’, must also be included in the recently proposed, ‘Transgender Persons Rights Bill’, to grant marriage rights to the transgender community. I also suggest the formation of, ‘National Commission for LGBTQ+ community’, that works for the interest, welfare, and growth of the community. This might provide better social inclusion and legal recognition to the LGBTQ+ community.

“There is nothing wrong with you. There’s a lot wrong with the world you live in”

– Chris Colfer

Endnotes:

  1. Vikas Pandey, Why legalizing gay sex in India is not a Western idea, BBC News (Dec. 31, 2018, 12:00 PM), https://www.bbc.com/news/world-asia-india-46620242.
  2. Sanjana Ray, Indian Culture Does Recognise Homosexuality, Let Us Count the Ways, The Quint (Sept. 11, 2018, 10:22 PM.), 
  3. Nyantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 ILS 95, 99-100 (2014)
  4. The Employees Provident Funds And Miscellaneous Provisions Act, 1952, No.19, The Workmen’s Compensation Act, 1923, No. 8.
  5. “Siddharth Narrain” & “Birsha Ohdedar”, A legal perspective on Same-Sex Marriage and other Queer relationships in India, ORINAM 1, 4-5 (2011).
  6. Ruth Vanita, Same-Sex Weddings, Hindu Traditions and Modern India, 91 F.R. 47, 52-53 (2020).
  7. Nyantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 ILS 95, 100-101 (2014).
  8. Nyantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 ILS 95, 101-102 (2014).
  9. Nicola Barker, Not the Marrying Kind – A Feminist Critique of Same-Sex Marriage, PMSLS 1, 48-49 (2012).
  10. 1 JEFFREY A. REDDING, Queer Theory – Law, Culture and Empire 125-127 (“Robert Leckey” & “Kim Brooks” eds., Routledge, 2010).
  11. Id.
  12. Naz Foundation v. Government of NCT of Delhi 2009 D.L.T 27 (India).
  13. Navtej Singh Johar v Union of India, A.I.R 2018 S.C. 4321 (India).
  14. Amber Tanweer, LGBT Rights in India, 2 I.J.L.M.H. 1, 6-7 (2018).
  15. Markandey Katju, Section 377 Verdict: Gay marriage, inheritance, adoption laws unlikely; ‘majoritarian’ view will keep State, SC away, Firstpost, (Sept. 7, 2018, 12: 39 PM), https://www.firstpost.com/india/section-377-verdict-gay-marriage-inheritance-adoption-legislation-unlikely-majoritarian-view-will-keep-state-sc-away-5134701.html.
  16. The Hindu Marriage Act, 1955, No. 25.
  17. The Indian Christian Marriage Act, 1872, No. 15.
  18. Manoj Mittal, Ancient India didn’t think homosexuality was against nature, The Times of India,(Jun.27,2009,00:18AM), https://timesofindia.indiatimes.com/india/Ancient-India-didnt-think-homosexuality-was-against-nature/articleshow/4708206.cms.
  19. Naz Foundation v. Government of NCT of Delhi 2009 D.L.T 27 (India).
  20. Vikas Pandey, Why legalising gay sex in India is not a Western idea, BBC News (Dec. 31, 2018, 12:00 PM), https://www.bbc.com/news/world-asia-india-46620242.
  21. Markandey Katju, Section 377 Verdict: Gay marriage, inheritance, adoption laws unlikely; ‘majoritarian’ view will keep State, SC away, Firstpost, (Sept. 7, 2018, 12: 39 PM).
  22. Special Marriage Act, 1954 (Act No 43 of 1954).
  23. Id.
  24. R.Venkadesh kumar, A Study on the Legal Recognition of the Same-Sex Marriage, 120(5) I.J.P.A.M. 2946, 2949-2950 (2018).
  25. Special Marriage Act, 1954 (Act No 43 of 1954).
  26. Nyantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 ILS 95, 106-107 (2014).
  27. Naz Foundation v. Government of NCT of Delhi 2009 D.L.T 27 (India).

Bibliography:

Acts/Statutes and Bills:

  • The Transgender Persons (Protection of Rights) Bill, 2016  
  • The Transgender Persons (Protection of Rights) Bill, 2018  
  • Special Marriage Act, 1954 (Act No 43 of 1954)
  • The Hindu Marriage Act, 1955, No. 25.
  • The Indian Christian Marriage Act, 1872, No. 15.
  • The Employees Provident Funds And Miscellaneous Provisions Act, 1952, No.19
  • The Workmen’s Compensation Act, 1923, No. 8.
  • 1 Jeffrey A. Redding, Queer Theory – Law, Culture and Empire 125-127 (“Robert Leckey” & “Kim Brooks” eds., Routledge, 2010).

Journal Articles/ Research Papers:

  • Nyantara Ravichandran, Legal Recognition of Same-sex Relationships in India, 5 ILS 95, (2014)
  • “Siddharth Narrain” & “Birsha Ohdedar”, A legal perspective on Same-Sex Marriage and other Queer relationships in India, ORINAM 1, (2011).
  • Gregory M. Herek, Legal recognition of same-sex relationships in the United States: a social science perspective, 6 A.P. 618, (2006).
  •  Ruth Vanita, Same-Sex Weddings, Hindu Traditions and Modern India, 91 F.R. 47, (2020).
  • Bhakti Parekh,Transgenders and their Right to Marriage, 17 S.M. 1, 7-8 (2020).
  • Amber Tanweer, LGBT Rights in India, 2 I.J.L.M.H. 1, 6-7 (2018).
  • R.Venkadesh kumar, A Study on the Legal Recognition of the Same-Sex Marriage, 120(5) I.J.P.A.M. 2946, 2949-2950 (2018).

Websites:

  •  Sanjana Ray, Indian Culture Does Recognise Homosexuality, Let Us Count the Ways, The Quint (Sept. 11, 2018, 10:22 PM.), https://www.thequint.com/voices/opinion/homosexuality-rss-ancient-indian-culture-section-377.
  • Vikas Pandey, Why legalising gay sex in India is not a Western idea, BBC News (Dec. 31, 2018, 12:00 PM), https://www.bbc.com/news/world-asia-india-46620242.
  • Shamayita Chakraborty, Despite Social Marriage, Gay Couples Still Yearn for Legal Rights, Entertainment Times, The Times of India (Jun. 25, 2019, 14:38 PM), https://timesofindia.indiatimes.com/life-style/spotlight/is-gay-marriage-a-reality-in-india/articleshow/69928813.cms.
  • Markandey Katju, Section 377 Verdict: Gay marriage, inheritance, adoption laws unlikely; ‘majoritarian’ view will keep State, SC away, Firstpost, (Sept. 7, 2018, 12: 39 PM), https://www.firstpost.com/india/section-377-verdict-gay-marriage-inheritance-adoption-legislation-unlikely-majoritarian-view-will-keep-state-sc-away-5134701.html.
  • Manoj Mittal, Ancient India didn’t think homosexuality was against nature, The Times of India, (Jun. 27, 2009, 00:18 AM) https://timesofindia.indiatimes.com/india/Ancient-India-didnt-think-homosexuality-was-against-nature/articleshow/4708206.cms.

Case Laws:

  • Naz Foundation v. Government of NCT of Delhi 2009 D.L.T 27 (India).
  • Navtej Singh Johar v Union of India, (2018) S.C. 1350 (India).
  • Goodridge v. Deptt. of Public Health, 798, N.E., 941 (Mass 2003). 
  • Minister of Home Affairs v. Fourie, 1 SA 524 (CC), (2006).
  • Kumar Koushal v. Naz Foundation (2014) 1 SCC 1
  • Obergefell v. Hodges
  • National Legal Services Authority v Union of India, (2014) 5 SCC 438

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