INTRODUCTION

Marriage, also referred to as a wedlock or matrimony, is legally and formally recognized union of two people as partners or spouses in a personal relationship and is often regulated by laws, rules, customs, beliefs and attitudes of people generally. Traditionally it was a recognized as a union between a biological man and a biological woman.

The word ‘homo’ signifies ‘same’. Hence homosexuality signifies ‘ability to love and/or to be sexually attracted to a member of same sex. Men who identify with this community are known as ‘gay’ and women associated with this community are known as ‘lesbian’.

Although legislations in various parts of the world have recognized same sex marriage and accorded it the status of a legal marriage, many third world countries including India is still apprehensive in declaring marriage between same sexes legal.

The landmark judgement in National Legal Services Authority vs. Union of India¹ (2014), wherein transgenders have been recognized as a third gender apart from male and female and have been given certain rights, in Navtej Singh Johar vs. Union of India² (2018), the Supreme Court struck down Section 377 of Indian Penal Code as unconstitutional. These are the budding steps taken by the Indian Judiciary toward blossoming of the flower of realization of the fundamental rights of LGBTQ+ community in India.

However, the issue in question remains the same, relating to legalization of same sex marriage in India which implicates deeply contested and controversial ideas, both morally and religiously.

HISTORY OF HOMOSEXUALITY IN INDIA

Homosexuality is not a new concept in the Indian subcontinent. Its roots can be traced to times immemorial since the vedic periods.the ancient Indian text Kamasutra written by Vatsyayana dedicates a complete chapter on erotic homosexual behavior. In the temples of Khajuraho, there

¹ (2014) 5 SCC 438

² (2018) 1 SCC791

are images of women erotically embracing other women and men displaying their gnitals to each other³.

Then there is reference to homosexuality in Mahabharat and Ramayan. In Mahabharat, the character Shikhandi is often referred to as Homosexual. Even in Ramayan there is mention of homosexuality when Lord Hanuman witnesses the union of Rakshasa women amongst themselves.⁴

In Shiv Purana, Lord Shiva falls in love with Lord Vishnu in the avatar of Mohini, a beautiful female which led to the birth of Lord Ayappa in whose dedication Sabrimala Temple is built.

The Manusmriti prescribes punishment to men and women engaging in homosexual activities. Even Kautilya’s Arthshastra prescribes punishment for engaging in Homosexuality.

Under Islamic Law as well, homosexual intercourse was punished by flogging or punishing the people caught in the act.

During the reign of the East India Company in India, the Indian Law Commission under the chairmanship of Lord, Thomas Babington Macaulay drafted the Indian Penal Code which inter alia, included section 377 which mad carnal intercourse against the order of nature punishable with imprisonment of ten years and a fine.

So we see that homosexuality is not an alien concept pulled out of thin air. It has always been prevalent in Indian society. It is not something which had its genesis or even prevalent only in western countries. The reason why it is more visible in Western countries is because, there generally is protective legislation that enables people to more openly claim equal rights.

HOMOSEXUALITY AND CONTEMPORARY INDIA

In the contemporary Indian society, homosexuality and homosexuals are seen with contempt especially in small town and rural areas which are still lacking the basic education facilities and are have their thinking rooted in stereotypical and conservative notions. Talking about it in the

³ https://www.indiatoday.in/india/story/10-instances-of-homosexuality-among-lgbts-in-ancient-india-

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⁴ ibid

confines of home is still considered a Taboo. In India where marriage is still considered a union of two families rather than two individuals and involve some pressure, discussion and persuasion by parents and other family members the difficulty arises in legalizing and the same sex marriage not only by the state but also its acceptance the community.

However, there are organizations and people whose continuous efforts have led to massive waves of acknowledgement of the rights of LGBTQ+ community. Prominent among them are- Naz Foundation, National AIDS Control Organisation (NACO), Navtej Singh Johar, Maneka Guruswamy, Aditya Bandhopadhaya and many more.

WHY SAME SEX MARRIAGE SHOULD BE LEGALISED IN INDIA?

The right to marry is a component of the right to life and liberty under Article 21 of the Constitution which says, “No person shall be deprived of right or personal liberty except according to procedure established by law”. This right has also been recognized under Universal Declaration of Human Rights, 1948. Article 16 of the same states that :

Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
Marriage shall be entered into only with the free and full consent of the intending spouses.
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

According to the age old adage – Change is the law of nature, the human race and hence the human world is constantly in the process of evolution. There have been transformations in almost every aspect of life such as- food, clothing, lifestyle, change in views as to how life should be lived, changes in various religious and moral aspects of human beings, changes in political institutions etc, over a period of time. Marriage, which was traditionally viewed as union of man and woman, being as much a part of a person’s social life as above mentioned, is no exception. It is high time that horizons of marriage be broadened so as to include marriage between same sex couples.

Another reasoning that could be given is that by allowing marriage only between hetrosexual couples, the legislature is making a discrimination between ‘normal’ and ‘not-so-normal’. It is therefore violative of Article 14 (Right to equality and equal protection of laws) as it does not satisfy the intelligible differentia test. It is high time that this distinction be removed and the concepts be generalized and normalized.

If Article 14 is the genus, then article 15 is the species⁵. Article 15 prohibits discrimination on the grounds only of race, religion, caste, sex and place of birth. Not legalizing marriage between couples of same sex creates discrimination on the basis of sex based on stereotypes against an entire class of persons. Therefore, non-legalisation of same sex marriages deprives an entire class of citizens of their fundamental rights. Inclusiveness and pluralism are at the heart of Article 15.

Article 19(1)(a) provides freedom of speech and expression. Marriage is an expression that indicates that two people want to live together for the rest of their lives. Marriages between hetrosexual couple comes within the purview of this right as they get to felicitate their ‘happy occasions’ in the gathering of their loved ones. However, homosexual couples, being weeded out of the definition of ceremonious occasion of marriages do not enjoy this right. In S Khushboo vs. Kanniamal⁶ (2010), the Supreme Court held,

“ Even though the constitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as “decency and morality” among others, we must lay stress on the need to tolerate unpopular views in the sociocultural space. The Framers of our Constitution recognised the importance of safeguarding this right since the free flow of opinions and ideas is essential to sustain the collective life of the citizenry.”

Also right to form associations or to gather under Article 19(1)(c) is also curtailed if same sex persons are allowed to marry. It should not only be hetrosexual couple who should get a chance to celebrate their union with the community, even homosexuals should get such a chance.

⁵ Naz Foundation v. Govt. of NCT of Delhi, 2010 Cr LJ (Delhi)

⁶ 4 (2010) 5 SCC 600

In Maneka Gandhi vs. Union of India⁷ (1978) P.N. Bhagwati, J. (as his Lordship then was) held that the expression “personal liberty” in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man.

In Francis Coralie⁸ (1978) it was observed, “right to life includes the right to live with human dignity and all that goes along with it, namely the bare necessaries of life such as….expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings…right to carry on such functions and activities as constitute the bare minimum expression of the human-self. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live.”

Therefore, it can be said that divesting homosexual couples of their right to get married is a blot to their dignity and hence is a violation of Article 21.

Ours is a system of democracy. The government derives its power from what is mentioned as ‘ We the People’ in the Preamble. Infringement of fundamental rights of even a miniscule population is intolerable in this system of government. Not allowing a certain class of community to marry their loved ones based on their sexual orientation and gender identities casts a shadow of doubt on our democratic values.

Our constitutional order characterized by the Rule of Law, the constitutional commitment to egalitarianism and an anti-discriminatory ethos which permeates our judicial and legislative actions. The test of popular acceptance should not be the basis to disregard the rights of the minority who have been segregated from the mainstream for hundreds of years. After suffering persecution for a long time under various religious, political and social systems, LGBTQ+ community should get a right to consummate their love in form of marriage.

WHY SAME SEX MARRIAGES SHOULD NOT BE ALLOWED IN INDIA?

If there are arguments that favour same sex marriage in India, there are also arguments (mainly from societal view point) that go against granting legality of same sex marriage.

⁷ (1978) 1 SCC 248

⁸ (1981) 1 SCC 608

Indian society is rather conservative and likes to cling to its traditional, social and cultural values. Homosexuality is not viewed very positively in India. The striking down of Section 377 IPC sent shockwaves throughout the country. People saw this historic move with contempt and an attempt by the Supreme Court to override the ‘Indian way of life’. It was considered as a move to spread obscenity in the country. So, it can be said that the country needs time to settle to this new normal and any move by legislature or by judiciary to introduce same sex marriage should be postponed.

Another argument that can be given is that it is still perceived that the basic ideal for getting married is to procreate. If viewed from a logical and scientific point of view, even before the advent of religions and civilizations, the basic purpose of human life is to reproduce. Marriage is just a socially acceptable way of producing kids. All other purposes of marriages such as companionship and security are ancillary. As per many Indian families, without the production of children, marriage serves no purpose.

However, this argument seems to be wrong. Now-a-days, due to advancement of science, even homosexual people can have children by undergoing surrogacy, IVF or by age old means of adoption.

Some people are opposed to the idea of same sex marriage because based on the religious beliefs regarding despicability of sodomy.

Therefore, we see that most of the views that disregard homosexuality and homosexual marriages are based on socio- cultural and deep rooted religious beliefs. However, in country such as ours, where there is a contest between ‘public morality’ and ‘constitutional morality’, emphasis should always be given to constitutional morality. Constitutional morality is the soul of the Constitution, which is to be found in the Preamble of the Constitution, which declares its ideals and aspirations, and is also to be found in Part III of the Constitution, particularly with respect to those provisions which assure the dignity of the individual.

There are others who view homosexual intercourse as ‘against the order of nature’ and are therefore quite doubtful of the activities that would go inside the marital bedroom of homosexual couple. However, this argument also does not stand the test of changing times. From a biological

perspective, what is unnatural, cannot simply exist. Hence we do see men photosynthesizing or women running faster than the speed of light or negatively charged electrons to be attracted to each other. Our concepts of ‘natural’ and ‘unnatural’ are taken not from a scientific view point but from the view point of Christianity.⁹

Speculations are made as to the effect on family system, laws of succession and adoption if the same sex marriages are allowed. However in a recent Supreme Court judgement, it has expanded the definition of family so as to include single parents, same sex parents etc. it can be inferred that same sex marriages have been allowed by the Indian judiciary.

PERSONAL LAWS AND SAME SEX MARRIAGE

India is nation with vast varieties of religions governing the private affairs of an individual’s life- marriage, succession, adoption, dress, food, divorce, maintenance and many more. Different laws apply to different communities depending on their religion. Almost all the religious communities forbid same sex marriages. Making any amendments in these laws will result in negative responses by the community.

In such scenario, Special Marriage Act, 1954 can play an important role. Special Marriage Act is a secular statute whose main aim is solemnization of marriage of people of various faiths and religions who do not wish to be governed by personal laws. By interpreting the provisions of statute in a present day scenario it can be seen that it intends to solemnize the marriage between a man and a woman. Nowhere in the act is mentioned that it allows marriage between a biological man and woman. We come to the conclusion that, Special Marriage Act can be interpreted in such a way to give way to same sex marriages.

CONCLUSION

Homosexuality is part of personality of an individual. Privacy allows a person to develop personal relationships without interference from outside community or state. Though same sex marriages may still seem a long struggle from now, civil unions (that are marriages without

⁹ Sapiens: A Brief History of Mankind, by Yuval Noah Harari

religious aspects of marriages), should be introduced and enforced. The government need not encourage homosexual behavior, but it is wrong to outlaw it.