By Ananya Khanna, Symbiosis Law School, Pune
Same-sex relationships have had a chequered history with Indian Courts. The Delhi High Court’s landmark judgement in the Naz Foundation lead the policy-makers to question the pragmatism and rationale behind Section 377 of the Indian Penal Code. While several factions vociferously rejected the idea of decriminalizing homosexual relationships, in light of India’s rich history bathed in ethics and tradition, the decision was lauded for its humanistic approach. The Supreme Court’s reversal of the Delhi High Court’s iconoclast judgement has faced immense opprobrium for erasing basic human rights that even homosexuals are entitled to as citizens of India. This Article analyses the Indian position on same-sex marriages in the aftermath of the Naz Foundation judgement of the Delhi High Court.
A statement that is very often used about marriage is ‘Marriages are made in heaven’. A marriage is a social union, or a legal contract (under some personal laws) between two individuals that establishes legal rights and obligations between them. It is principally an institution in which interpersonal relationships, including sexual relations between the spouses, are acknowledged and legalised. When two individuals decide to spend the rest of their lives together, they often legalise their communion by entering into marriage.
In many countries, legal recognition is given only to marriages between opposite sex couples, banishing same sex marriages. Homosexuality is considered a taboo in many parts of the world even today. However, many countries and nations have brought about changes in their legislations, acknowledging an individual’s personal choice and freedom in choosing his/her partner, by giving legal status to same sex marriages. Let us now understand Homosexuality in detail.
HOMOSEXUALITY IN INDIA
Homosexuality is a romantic attraction or a sexual attraction between members of the same sex. It refers to “an enduring pattern of or disposition to experience sexual, affectionate, or romantic attractions” to people of the same sex. Scientists have carried on various researches to identify the causes of homosexuality in humans. The biologically-based theories for the cause of sexual orientation are favored by most experts, which point to genetic factors, the early uterine environment, or both combinations. Many people feel that homosexual activity is unnatural and dysfunctional; however, biological research has shown that it is an example of a normal and natural variation in human sexuality, and is not in the control of an individual.
In India, homosexuality has been a taboo since a very long time. Marriage is considered to be a holy sacrament by Hindus, and union between persons of the same sex has been considered to be immoral and inappropriate. Since marriage is seen mostly from a religious angle, a gay marriage is presumed to be unholy and against God himself. It is believed by many Indians, that the concept of same sex unions has been brought by the Western countries, and it is this bad Western influence on the Indians that is leading to their rise. However, homosexuality is not a concept devised by the West, as many who oppose this notion believe. References of homosexuality can be found in our ancient literatures and scriptures, which reflect that the concept was prevalent in our society since ancient time. Rigveda, one of the four canonical sacred texts of Hinduism says ‘Vikriti Evam Prakriti’ (what seems un-natural is also natural), which some scholars believe recognises the cyclical constancy of homosexual/transsexual dimensions of human life, like all forms of universal diversities. Historical literary evidence shows that homosexuality has been prevalent across the Indian subcontinent throughout history.
SECTION 377 OF THE INDIAN PENAL CODE, 1860
Section 377 of the Indian Penal Code,1860, which was introduced in India during the British rule, criminalised sexual activity “against the order of nature”.
The section reads thus: Whoever 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 term which may extend to ten years, and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.[i]
This section criminalised consensual homosexual activities also. However, the Delhi High Court in the case of Naz Foundation v. Government of NCT of Delhi on 2 July, 2009, passed a landmark judgement, decriminalizing homosexual intercourse between consenting adults. Section 377 of the Indian Penal Code was adjudged to violate the fundamental right to life and liberty and the right to equality as guaranteed by the Constitution of India.
Naz Foundation, a non-governmental organisation, in the year 2001, filed a law suit in the Delhi High Court, asking for a legislation of homosexual intercourse between consenting adults. The Court however refused to entertain their petition as it said the petitioner had no locus standi in the matter. On further appeal to the Supreme Court, the SC held that Naz Foundation had the locus standi to file a Public Interest Litigation in this matter, and the case was sent back to the Delhi High Court. In 2006, the National AIDS Control Organisation filed an affidavit stating that the enforcement of Section 377 violates LGBT rights. Subsequently, there was a significant intervention in the case by a Delhi-based coalition of LGBT, women’s and human rights activists called “Voices Against 377”, which supported the demand to “read down” section 377 to exclude adult consensual sex from within its purview.
On 2 July, 2009, a bench comprising of Chief Justice Ajit Prakash Shah and Justice S. Muralidhar, held that Section 377 of the Indian Penal Code was in violation of the fundamental right to dignity and privacy within the right to life and personal liberty guaranteed by Article 21 of the Indian Constitution. Also, the Court also held that Section 377 was against Article 14 and 15 of the Constitution, as it discriminated homosexuals and created a class, discriminating them on the basis of sex. The Court held that the word ‘sex’ in Article 15 not only includes biological sex, but also the sexual orientation of a person.
The Court also observed that the right to life under Article 21 includes the right to health, and concluded that Section 377 is an impediment to public health because it hinders HIV-prevention efforts.
The judgement saw many gay parades and festivals in the city, rejoicing and celebrating the Delhi High Court decision. The judgement can be seen as a pioneering step in advocating the rights of homosexuals.
MARRIAGE UNDER DIFFERENT PERSONAL LAWS IN INDIA
In India, citizens have a choice to be married under their various personal laws, or a common law of civil marriage. While none of the acts have explicitly defined marriage as a union between a man and a woman, it has been interpreted and understood to mean that a marriage is always between a man and a woman. Words like ‘bride and bridegroom’, ‘husband and wife’ imply that the laws are valid only for couples of the opposite sex. The Hindu Marriage Act, 1955, is applicable for Hindus, Sikhs, Jains and Buddhists. Section 5 of this Act says that a marriage may be solemnized between any two Hindus, if the bridegroom has completed the age of twenty- one years and the bride the age of eighteen years at the time of the marriage. Also, Section 60 of the Indian Christian Marriage Act, 1872, lays down that the age of man intending to be married shall not be under twenty- one years, and the age of woman intending to be married shall not be under eighteen years. Thus, both these legislations have heterosexist underpinnings. In the case of Muslims, they are governed by Islamic Law itself, rather than any codified law of the Parliament. As per Islamic law, marriage is a contract, and the purpose of marriage is to legalise sexual relations between a man and a woman, for the procreation of children (however, this is not a universal view, with other competing views existing about homosexuality in Islam).
The Special Marriage Act, 1954, allows for marriages between individuals from different religions and castes. While no separate definition of marriage is given, the Act also has heterosexist underpinnings, such as the definition of a ‘prohibited relationship’ which only considers a relationship between a man and a woman within certain degrees of familial relations.
Thus, India does not have any legislation that legalises same sex marriages. However, Delhi High Court’s landmark judgement in Naz Foundation v. Government of NCT of Delhi is a major step towards changing the perception of same sex unions in India.
SAME SEX RELATIONSHIPS IN INDIA AND AROUND THE WORLD
Netherlands was the first country in the world to legalise same sex marriages, way back in 2001. In Belgium and Spain, such unions got legal recognition in the years 2003 and 2005, respectively. Canada legalised same sex unions in 2005, South Africa in 2006, and Norway in 2009. The year 2010 saw Portugal, Iceland and Mexico legalising gay marriages, and since 2012, Denmark and Caribbean Netherlands gave it the legal nod. Since 2013, New Zealand, France, Brazil and Uruguay have also legalised same sex unions.
In India, same sex marriages have not been legalised, however few celebrities have entered into same sex civil partnerships. Designer Wendell Rodricks, entered into a civil partnership (as civil partnerships are allowed in France) with his French partner Jerome Marrel, conducted under French law in Goa. Writer Vikram Seth has openly admitted the truth about his sexual orientation, calling himself gay. Prince Manvendra Kumar Singh Gohil, from the royal family of the former princely state of Rajpipla in India, is the only known person of royal lineage in modern India to have publicly revealed that he is gay.
Marriage is a union of two souls, along with legal recognition. When a person chooses his or her life partner, and enters into the sacred institution of marriage, he or she begins a new chapter in his or her life. It is a journey, wherein two individuals share their lives, joys, sorrows, success and failures. The relationship is based on trust and understanding, love and care for each other, and it is a journey of a lifetime. Sexual intimacy is an integral part of a marriage, and a marriage cannot survive without it.
Every person has the right to live their life the way want, and decide what gives them happiness, and what does not. Article 21 of the Constitution of India entitles every citizen of with the right to life and personal liberty. This right also includes the right to privacy and dignity. Choosing one’s life partner is a private subject, and it is a choice that an adult is entitled to make for himself. What is the problem then, if a man wants to marry another man, or a woman finds her soul mate in another woman?
Many people consider homosexuality a crime because of religious and moral reasons. As a member of the society, man is raised with certain traditional notions of life and the way of living. Even though it is not present as a written commandment, a majority of the society thrives upon the notion that heterosexual relations are wrong. No wonder in India, this is still a jaw dropping question to at least 50% of the population. Many people take the pretext of religion to call same sex relationships as immoral. As homosexual relationships have been widely questioned by many religious leaders and associations, the followers may interpret gay marriage/ relation as a sin. However, no religion teaches you to hate someone because he is different from you, or publicly humiliate and discriminate another person. Every religion teaches that love is the greatest of all emotions. It is an expression of divinity, and the purest feeling. So how can a man loving another man commit a sin?
The most disturbing thing is that homosexuals face immense humiliation and discrimination by the society, without any fault of theirs. It is not their fault that they were born that way. They are ostracised from the community, once their identity was revealed. This forces many such couples to hide their sexual orientations, causing frustration, dissatisfaction and self- hatred among many. A satisfactory personal life is as much a right of gay couples as others.
In 2010, a gay professor of Aligarh Muslim University died mysteriously after facing discrimination from many quarters. His death shows the trauma homosexuals face in our society, and the stigma attached with being gay. But why is being a homosexual wrong? It is someone’s sexual orientation that is strictly one’s private life, and hence should not affect other areas of one’s life.
We need to understand that gays or lesbians are not aliens instead they are one among us only having different emotional & sexual needs.
I firmly believe that same sex marriages should be given a legal status in India. Homosexuals often feel like an outcast in the society. The best way they can integrate completely into the society would be by legalising their relationships. That is, marriage will help eliminate the stigma attached with being a homosexual. By giving them a married couple status, not only do they get social acceptance, but also the benefits a married couple enjoys in India: social security, property inheritance, right of raising a child, health care facilities, etc. Forcing them to marry out of their choice and against their sexual inclination not only disturbs their life but also destroys the life of their partner.
The Delhi High Court’s judgement has opened new gates, and it will hopefully prove to open many more gates in the future. This judgement is the light in the dark tunnel that will hopefully see a new marriage law in the country that caters to the need of all.
Change is the law of nature, and law itself cannot remain stagnant. This is the time that we as conscious citizens of India open our eyes and see homosexual relationships, not through the eyes of morality and religion, but from the point of view of humanity.
Edited by Raghavi Viswanath
[i] Section 377, Indian Penal Code 1860