EMBRACING DIVERSITY: THE QUEST FOR SAME-SEX MARRIAGE RECOGNITION IN INDIA

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This article is written by Kumari Asmita of 3^rd Semester of BALLB of CHRIST (Deemed to be) University, Bengaluru, an intern under Legal Vidhiya

Abstract

Same-sex marriage in India has emerged as a dynamic topic that encompasses historical, legal, cultural, human rights, and recent judicial dimensions. It delves into a rich legacy of diverse sexual orientations in India’s history, the impact of British colonialism, and the legal journey from the criminalization of homosexuality to decriminalization. In addition to evaluating the Special Marriage Act of 1954, this article examines the recent Supriyo Chakraborty case, compares international experiences with same-sex marriage, discusses societal perspectives, explores the health and well-being of LGBTQ+ individuals, and emphasizes the role of advocacy in the path forward.

Keywords

Homosexuals, Same-Sex Marriages, Legalizing, LGBTQ+ Rights, Human Rights.

Introduction

Marriage, traditionally perceived as the sacred union of two individuals, has undergone a profound transformation in modern Indian society. It is no longer solely a means for procreation; it symbolizes a celebration of love and commitment. However, this transformation brings with it a set of compelling questions, especially concerning same-sex marriage in India, a topic that weaves together historical contexts, legal frameworks, cultural nuances, human rights, and recent judicial developments.

India boasts a rich historical legacy of embracing diverse sexual orientations, evident in ancient texts, art, and traditions. Yet, the advent of British colonialism and the imposition of the Indian Penal Code in 1860 brought a fundamental shift, culminating in Section 377, which criminalized same-sex relations. This paper explores the various facets of same-sex marriage in India, from a historical perspective to the legal journey, encompassing the recent Supriyo v. Union of India case, which spotlights the ongoing struggles for LGBTQ+ rights.

Historical Perspective: India’s Diverse Legacy of Same-Sex Relationships

India’s history offers a rich tapestry of diverse perspectives on same-sex relationships, providing valuable insights into the country’s complex relationship with LGBTQ+ rights. The historical context showcases a legacy of acceptance, ambiguity, and transformation, which has significantly influenced the contemporary discourse on same-sex marriage in India.

Ancient India: The Vedic Period and Hindu Texts

Vedic Literature: India’s ancient Vedic texts, which date back over two millennia, provide early glimpses of the acceptance of diverse sexual orientations. The Rigveda, one of the oldest Vedic texts, contains verses that do not explicitly condemn homosexuality. Some scholars interpret these verses as acknowledging the existence of same-sex attraction without judgment.
Hindu Epics and Myths: Hindu epics, such as the Mahabharata and Ramayana, include stories that have been interpreted as portraying LGBTQ+ themes. For example, the Mahabharata mentions the tale of King Bhangaswana, who changed genders multiple times, and the Ramayana features characters like Shikhandi, who changes gender.
Ardhanarishvara: The concept of Ardhanarishvara, a form of the deity Shiva that represents a fusion of male and female elements, underscores the recognition of gender fluidity in Hinduism. It has been cited as a symbol of gender diversity and acceptance.

Medieval and Colonial India: Changing Perspectives

Mughal and Sultanate Eras: During the Mughal and Sultanate periods, homosexual relationships found a degree of social acceptance within certain aristocratic circles. Some rulers, like Akbar the Great, were known for their tolerance toward diverse sexual orientations.
Colonial Influence: The British colonial rule significantly impacted India’s stance on same-sex relationships. The introduction of the Indian Penal Code in 1860, with Section 377 criminalizing “carnal intercourse against the order of nature,” marked a turning point. This law suppressed open discussions and acceptance of same-sex relationships, instigating a more conservative viewpoint.

Post-Independence India: Legal Struggles and Decriminalization

Persistence of Section 377: Section 377 of the Indian Penal Code continued to affect LGBTQ+ individuals in post-independence India. It subjected them to discrimination, harassment, and stigmatization, perpetuating a climate of secrecy.
Struggles for Recognition: The LGBTQ+ community in India, along with allies and activists, waged a long battle for recognition and equal rights. Organizations like Naz Foundation played a pivotal role in challenging the constitutionality of Section 377.
Navtej Singh Johar Case: In 2018, the Supreme Court of India delivered a historic judgment in the Navtej Singh Johar v. Union of India case. The court partially decriminalized Section 377, declaring that consensual same-sex relations among adults could not be deemed criminal. This landmark ruling marked a significant shift toward recognizing LGBTQ+ rights.

India’s Diverse Legacy: The Way Forward

India’s diverse legacy offers a nuanced historical perspective on same-sex relationships. From the relative acceptance in ancient texts to the colonial-era criminalization and the modern struggle for LGBTQ+ rights, India’s journey has been marked by evolution and transformation. The decriminalization of consensual same-sex relations in 2018 represents a substantial step toward greater acceptance, but there is still a long road ahead.

The historical perspective demonstrates that LGBTQ+ identities are not foreign to India’s culture and traditions. By acknowledging this diverse legacy, the country can embrace a more inclusive future that respects LGBTQ+ rights, including the right to marry. Understanding this history enables India to honour its rich traditions of acceptance while progressing toward a more equitable and inclusive society.

Legal Perspective on Same-Sex Marriage in India

The legal perspective on same-sex marriage in India is a nuanced and evolving topic that involves constitutional principles, statutory frameworks, judicial decisions, and ongoing debates. Here, we delve deeper into the legal aspects surrounding same-sex marriage, highlighting the constitutional principles at play, the Special Marriage Act of 1954, the recent judicial stance, and the challenges faced.

Constitutional Principles

The Indian Constitution is the fundamental document that guarantees the rights and liberties of every Indian citizen. Several key constitutional principles come into play when discussing same-sex marriage:

Equality (Article 14): Article 14 of the Indian Constitution ensures the right to equality. It states that the government shall not deny any person equality before the law or equal protection of the laws within the territory of India. Proponents of same-sex marriage argue that denying LGBTQ+ individuals the right to marry constitutes discrimination based on sexual orientation.
Non-Discrimination (Article 15): Article 15 prohibits discrimination on various grounds, including sex. Arguments have been made that this article should encompass discrimination based on sexual orientation, making it unconstitutional to deny LGBTQ+ individuals the right to marry.
Right to Life and Personal Liberty (Article 21): Article 21 of the Constitution protects the right to life and personal liberty. This right has been interpreted broadly by the courts, including the right to choose one’s partner and to live with dignity. Supporters of same-sex marriage contend that this article should encompass the right to marry a person of one’s choice, irrespective of gender.
Privacy and Autonomy: The right to privacy, established as a fundamental right in the landmark Puttaswamy case, is also crucial. It underscores an individual’s autonomy over personal decisions, including the choice of a life partner. These right forms the basis for the argument in favor of same-sex marriage.

The Special Marriage Act of 1954

The Special Marriage Act of 1954 is a significant piece of legislation in India that provides a legal framework for interfaith and inter-caste marriages, as well as for marriages between individuals of the same sex. Here’s how this act relates to same-sex marriage:

Equal Treatment: The Special Marriage Act is distinct from personal laws in India, as it allows individuals to marry without any consideration of their religion or caste. It recognizes the right to choose a life partner based on personal preferences, and ensures that love and companionship are not bound by societal norms or prejudices.
Inclusivity: Same-sex couples can, in principle, enter into a legal union under the Special Marriage Act. This law theoretically secures the rights of same-sex couples and gives recognition to their relationship.
Conditions for Marriage: Section 4 of the Special Marriage Act specifies the conditions for marriage, including the legal age, capacity to give consent, and the absence of prohibited relationships. This ensures that same-sex marriages are consensual and that parties have the freedom to choose their partners irrespective of gender.
Procedure for Marriage: Section 5 of the act lays down the procedure for the solemnization of marriage. It requires both parties to give written notice to the Marriage Officer in the district where at least one of them has resided for a specified period. After the notice period expires, the Marriage Officer conducts the solemnization, ensuring that all legal requirements are met.

The Special Marriage Act grants various rights and responsibilities to married couples, regardless of their sexual orientation. It recognizes their legal status, inheritance rights, and obligations towards each other. Same-sex couples married under this act are entitled to the same legal protections and benefits as heterosexual couples, including the right to adopt children and the right to inherit property.

It’s important to note that the recognition and acceptance of same-sex marriages in India, even under the Special Marriage Act, have evolved gradually. The act itself has not been amended explicitly to mention same-sex marriages, and recognition often depends on progressive interpretations and court decisions.

Recent Judicial Stance

The recent judicial stance on same-sex marriage in India has been shaped by a series of landmark cases. In 2018, the Supreme Court’s verdict in Navtej Singh Johar v. Union of India decriminalized consensual homosexual acts. This decision was a significant step towards recognizing LGBTQ+ rights.

However, the same court, in a recent case involving Supriyo Chakraborty, declined to recognize the right of same-sex couples to marry or have civil unions. The court’s majority opinion emphasized that marriage is not an inherent, unqualified right, but rather one subject to statutes and customs. It was also emphasized that legal recognition of civil unions akin to marriage can only be established through an enacted law; the court cannot mandate or create such a legal status.

In the Supriyo Chakraborty case, the court unanimously rejected the challenge to provisions of the Special Marriage Act. This decision reinforces the need for legislative action to specifically address the legal recognition of same-sex marriages.

Challenges Faced

The legal challenges surrounding same-sex marriage in India are multi-faceted:

Statutory Gaps: While the Special Marriage Act provides a legal framework, it has not been amended to explicitly mention same-sex marriages. This statutory gap creates ambiguity and leaves room for interpretation.
Legislative Action: The recognition of same-sex marriages in India ultimately requires legislative action. Until a comprehensive legal framework explicitly addresses this issue, same-sex couples continue to face legal uncertainties.
Social and Cultural Obstacles: Legal recognition alone does not guarantee societal acceptance. Deep-rooted cultural norms, conservative religious perspectives, and societal biases against LGBTQ+ individuals pose significant challenges to broader acceptance of same-sex marriages.
Continued Advocacy: Advocacy remains crucial to drive legal reform and social change. Various organizations and activists are actively working to raise awareness, combat discrimination, and push for legal amendments that recognize same-sex marriages.

Socio-Cultural Aspects of Same-Sex Marriage in India

The socio-cultural aspects of same-sex marriage in India are multifaceted and deeply rooted in the country’s history, culture, religion, and evolving societal norms. A comprehensive understanding of these aspects is essential to grasp the challenges and opportunities that arise in the context of LGBTQ+ rights and same-sex marriage.

Historical Context:

Ancient Roots: India’s rich cultural heritage includes references to diverse sexual orientations and same-sex relationships in ancient texts. For example, the Kamasutra, a foundational work on human relationships, acknowledges homosexuality. Moreover, temple carvings at sites like Khajuraho depict same-sex eroticism, revealing the historical acceptance of diverse sexual identities.
Colonial Influence: The colonial period introduced the Victorian moral code and enacted Section 377 of the Indian Penal Code in 1860, criminalizing “carnal intercourse against the order of nature.” This colonial legacy deeply impacted Indian society’s perception of same-sex relationships.

Cultural and Religious Influence:

Diverse Religious Traditions: India is home to several religions, each with its own stance on LGBTQ+ issues. While some Hindu and Buddhist sects have historical acceptance, more conservative interpretations have led to discrimination. For instance, some religious leaders and institutions continue to oppose same-sex relationships.
Local and Regional Variations: Cultural and religious attitudes can vary significantly from one region to another within India. Conservative interpretations may be more prevalent in certain states, while others may have a more inclusive and accepting outlook.

Challenges and Discrimination:

Social Stigma: Widespread social stigma and discrimination against LGBTQ+ individuals persist, creating significant barriers to acceptance and social integration. The fear of rejection and isolation often compels individuals to hide their sexual orientation.
Family and Social Pressure: India’s strong emphasis on traditional family structures and expectations of marriage and procreation can exert immense pressure on LGBTQ+ individuals. The act of coming out may lead to familial rejection or ostracism.
Legal Recognition: The absence of legal recognition for same-sex marriages leaves LGBTQ+ couples without important legal protections. This lack of acknowledgment affects property rights, inheritance, and access to healthcare, often placing LGBTQ+ couples at a disadvantage.

Changing Perceptions:

Activism and Awareness: LGBTQ+ activists, allies, and organizations have made significant strides in raising awareness and advocating for equal rights. Pride parades and other events have become increasingly visible in urban centers.
Legal Progress: The 2018 Supreme Court ruling in the Navtej Singh Johar case, which decriminalized consensual homosexual acts, marked a vital legal milestone. While it did not address marriage specifically, it set an essential precedent for LGBTQ+ rights.
Media Representation: The representation of LGBTQ+ characters in Indian cinema and literature have contributed to challenging stereotypes and fostering acceptance. Popular media figures have also come out, helping to normalize LGBTQ+ identities.

Public Opinion:

Generational Shift: Younger generations, in general, tend to be more accepting of same-sex relationships and marriage. This generational shift is gradually transforming societal attitudes toward LGBTQ+ issues.
Urban vs. Rural: Urban areas, where exposure to diverse cultures and ideas is more extensive, often exhibit greater acceptance of LGBTQ+ rights. Rural areas, however, may be more conservative in this regard.
Conservative Resistance: Conservative groups and individuals continue to resist LGBTQ+ rights, often invoking cultural and religious arguments to support their stance.

Cultural Diversity:

Third Gender: India officially recognizes a third gender category, which includes hijras and eunuchs, who have a longstanding cultural significance in the country. This recognition is progressive but highlights the intricate nature of gender and sexuality in India.
Regional Variations: Different states and regions in India may possess unique cultural norms and attitudes towards LGBTQ+ issues, influencing the pace of change and acceptance.

International Comparisons

The international perspective on same-sex marriage is a compelling dimension that provides valuable insights into the global evolution of LGBTQ+ rights, social acceptance, and the legal framework surrounding same-sex unions. By examining various countries and their experiences, it becomes clear that attitudes and policies toward same-sex marriage are highly diverse and can be deeply influenced by cultural, historical, and legal factors.

The Pioneers: Several countries took pioneering steps in legalizing same-sex marriage, setting significant precedents for the rest of the world. The Netherlands, in 2001, was the first country to recognize same-sex marriage, and it was a groundbreaking moment in the history of LGBTQ+ rights. Countries like Belgium, Canada, Spain, and South Africa soon followed, demonstrating that it was possible to grant equal rights to LGBTQ+ couples. The legislative progress in these nations was often accompanied by societal change and a growing acceptance of LGBTQ+ individuals.
Europe’s Transformation: Europe has seen a remarkable transformation in its approach to same-sex marriage. Nations like France, the United Kingdom, and Germany have extended legal recognition to same-sex couples, reflecting the broader trend toward equality. The European Union, as well, has endorsed LGBTQ+ rights, further emphasizing the importance of these rights at the supranational level.
Latin American Progress: Many countries in Latin America have made substantial advancements in recognizing same-sex marriage. Argentina, in 2010, became the first country in the region to legalize same-sex marriage, and this shift was monumental for LGBTQ+ rights in predominantly Catholic countries. Uruguay, Brazil, and Colombia have also followed suit, illustrating the diversity of acceptance and progress in the region.
The U.S. Experience: The United States, through the Supreme Court’s historic decision in Obergefell v. Hodges in 2015, legalized same-sex marriage nationwide. This marked a momentous step forward, ensuring that same-sex couples across all states enjoyed equal legal recognition and rights. The Obergefell decision was celebrated as a landmark victory for LGBTQ+ rights.
Oceania and Asia-Pacific: New Zealand, Australia, and Taiwan are noteworthy examples of countries in the Oceania and Asia-Pacific region that have legalized same-sex marriage. These developments have contributed to the ongoing conversation on LGBTQ+ rights in these regions, though there are still areas where progress remains to be made.
Global Variations: While progress has been made in numerous countries, the global landscape remains diverse. Some nations continue to resist legalizing same-sex marriage, often citing cultural or religious reasons. In regions like the Middle East and parts of Africa, homosexuality remains criminalized, and LGBTQ+ individuals face significant discrimination and persecution.
The Role of International Organizations: International bodies, such as the United Nations and the European Union, play a crucial role in advocating for LGBTQ+ rights on a global scale. Various international agreements and conventions emphasize the importance of non-discrimination, recognizing the rights of LGBTQ+ individuals as human rights.

The international perspective on same-sex marriage highlights the incredible diversity in the recognition of LGBTQ+ rights worldwide. While progress has been significant in many countries, challenges persist, and the fight for equality is far from over. It is essential for nations to learn from each other’s experiences and continue advocating for LGBTQ+ rights at the international level to promote a more inclusive and equitable world for all.

Conclusion

The issue of same-sex marriage in India is a complex, multifaceted challenge that requires comprehensive and inclusive solutions. Recent legal developments, including the partial decriminalization of Section 377 and the landmark Supreme Court verdict in the Supriyo Chakraborty case, have brought the matter to the forefront of national discourse. However, the unanimous stance of the Constitution Bench in not recognizing same-sex marriage as an absolute fundamental right underscores the hurdles that the LGBTQ+ community still faces.

Moving forward, India must adopt a holistic approach to address these challenges. Legislative reforms should be a priority to recognize same-sex marriages, offering the LGBTQ+ community the same rights and privileges enjoyed by heterosexual couples. Education and awareness initiatives are essential to dispel myths, reduce prejudice, and foster acceptance. Access to healthcare and mental health support is crucial for the well-being of LGBTQ+ individuals.

Furthermore, India’s diverse historical legacy, which has displayed acceptance of diverse sexual orientations in the past, should be revisited and celebrated. Open and inclusive public dialogues should continue to challenge stereotypes and misconceptions. By embracing its rich heritage and aligning with the constitutional principles of equality, non-discrimination, and personal liberty, India can position itself as a progressive advocate for LGBTQ+ rights in the region. The journey toward full acceptance, respect, and equality may be ongoing, but it is essential for the nation to realize its potential as a diverse, inclusive, and forward-thinking society.

References