Should Homosexual Marriage Be Legal in India?

Introduction :

“Same-sex marriages are against Indian culture,” said the Indian government.

"In India, same-sex marriage is neither recognized nor accepted in any uncodified personal laws," said Sushil Kumar Modi, a Member of Parliament (Dec. 19, 2022, Rajya Sabha).

The Supreme Court made the decision to hear a number of applications that were pending in various High Courts two months ago, on January 6. These petitions were about same-sex marriages and whether or not they should be legalized in India.

The supporters of the petition said that India decriminalized homosexual relationships in 2018, i.e., one can legally have a relationship with a homosexual partner. They argue that as India decriminalized homosexual relationships in 2018, why should it not legalize same-sex marriages in 2023? They believe that same-sex marriages should be legalized in the same way that homosexual relationships are. They argue that not recognizing same-sex marriage violates constitutional rights that are guaranteed.

"The non-recognition of same-sex marriage violates the Right to Equality in Article 14 of the Constitution of India," say the supporters of the petition.

But the government holds an entirely different opinion. Our society is divided on this matter as well. Some argue that people have the right to marry, if they desire, whomever they like.

Consider the case of Bengali citizens Supriyo Chakraborty and Abhay Dang. They have been together for around 10 years, their families have accepted them, and they have even held a wedding ceremony. Due to Indian law not recognizing same-sex marriages, they wish to get married but are unable to do so.

On the other hand, some argue that same-sex marriages are against Indian society. Because the family is the fundamental unit of Indian society. Because same-sex couples cannot procreate, they cannot form a family. That's why such marriages go against society. Because the family is the fundamental unit of Indian society. Therefore, is it appropriate for India to legalize same-sex marriage? This is an important topic to debate because it affects a large number of Indians.

According to reports, approximately 7-8% of the Indian population is LGBTQ+ community. The Supreme Court will reach a final decision on this in April. How should we discuss this question? That's what we will do in this article. We will try to understand the arguments presented by both sides—the supporters and the opponents.

We can divide society into three groups. One who believes that homosexuality and same-sex marriage should be legalized. Second, it is in favor of legalizing homosexuality but not marriage. And third, there are those who oppose the legalization of both. In this article, we will discuss the first and second groups. I am not going to discuss the third group that claims that homosexuality should be illegal, because I think the 2018 decision put an end to this group’s argument.

Brief History : 

On September 6, 2018, the Supreme Court struck down Section 377 of the Indian Penal Code. This section criminalizes homosexual relationships. Section 377 of the IPC was the first codified legislation on homosexuality in India and went into effect during British rule.

Lord Macaulay drafted it in 1838. This rule outlawed any “unnatural sex against the order of nature.” According to this law, homosexuality was deemed “unnatural.” You could go to jail for being homosexual.

Before Independence, being outspoken about this law had harsh consequences. For example, some of you might know about the movie “Fire”. “Lihaaf,” a book, was the source of inspiration for this film. The 1942 publication Lihaaf tells the story of a neglected wife who explores lesbian sex.

The book was authored by Ismat Chughtai. In 1946, she was charged with obscenity. Mr. Aslam, also an author, tried to persuade Chughtai to apologize and end the matter. To this, Chughtai replied, “You have the freedom to write whatever you want, you don't need my permission. Similarly, I don't feel any need to seek your permission for writing how I want to.”

Things continued to remain the same even after independence. There was a famous case in 1987 when police officers Leela and Urmila from Bhopal were sacked from their jobs after getting “married” and coming out as a lesbian couple.

Similar to this, author Payal Dhar, who self-identifies as a member of the LGBTQ+ group, claims that throughout the 1980s and 1990s, she lacked language to express how she saw herself. She wrote that despite growing up in a family that considered itself progressive, she was forced to wear feminine clothing and rebuked for ‘wanting to be a boy'.

If you want to learn about the difficulties people have encountered as LGBTQ+ in India, I strongly advise you to watch the film called Aligarh. Manoj Bajpayee is at his best in the movie. Just a warning that this movie is not easy to watch. It doesn't have a happy ending. The movie is quite grim. If you like watching such movies, check it out.

Even after independence, the people of this community continued to face discrimination, and Section 377 remained in effect. However, things began to take a turn in the 1990s. In 1991, India's liberalized its, and LGBTQ+ activists gained inspiration from the idea of equality prevalent in foreign countries. During this time, India's first LGBTQ magazine, Bombay Dost, also started its publication.

Although society and the law continued to be against the LGBTQ+ community, support started to grow with time. According to Shridhar Rangayn, a national award-winning filmmaker, the magazine gave a voice to the country's insecure LGBT youth.

In 2001, an NGO called the NAZ Foundation petitioned the Delhi High Court to challenge Section 377. The petition has been stalled for over 8 years. The Delhi High Court dismissed the petition. The Supreme Court requested that the High Court reexamine the matter. As a result, the Delhi High Court decriminalized homosexuality in 2009. 

The case was heard by the Supreme Court. The Supreme Court overruled the High Court's decision in 2012, stating that less than 200 persons had been convicted under the section in the previous 150 years. Therefore, there was no need to repeal the law. Things were not moving forward in Parliament either. In 2015, Shashi Tharoor introduced a private member's bill to decriminalize homosexuality, but the Lok Sabha voted against it. Finally, in 2018, Section 377 was scrapped by the Supreme Court of India and homosexuality was decriminalized.

Decriminalization is not enough:

Many of you might be wondering if the Supreme Court has already decriminalized homosexuality so that same-sex couples can even live together legally. Why is there so much stress on the legal recognition of same-sex marriages?

The film 'Badhai Do' provides a partial answer to that topic. Due to pressure from their families, the movie's homosexual pair, Shardul and Suman, wed and went on to enjoy a "normal" life. But they continue to see their partners. Such unions are called lavender marriages. A gay man and a lesbian woman agree to marry, not necessarily out of love, in order to appear in society as a heterosexual couple. Soon, Shardul and Suman’s families discover the truth that they are gay and lesbian and even embrace it. You would expect them to break off their marriage, right? But they decided to remain married. Why?— Because they wanted to adopt a baby.

A same-sex couple can't legally adopt a baby in India. A single woman can adopt a child of any gender under Indian law, whereas a single man can only adopt a male child. This means that an LGBTQ+ person can apply for adoption as a single parent, with no legal rights to the child. The LGBTQ+ supporters stress how such laws create grounds for discrimination in society.

There are many ‘family laws’ in India that regulate matters of adoption, surrogacy, inheritance, etc. ‘Marriage’ plays a crucial part in all these laws. As LGBTQ+ couples can't marry legally, they are deprived of the rights afforded by these laws.

Consider Sameer Samudra, who married his boyfriend, Amit Gokhale, in the United States nine years ago. The couple moved to India some years ago. They have been giving through financial struggles because of the law. Sameer said that he was unable to obtain life insurance for his spouse. Because their marriage is not legally recognized, they are unable to apply for a joint home loan. Moreover, same-sex couples lack security and protection from the government and society.

For instance, in the case of marriages between heterosexual couples, one partner cannot simply walk away and marry someone else. Due to the lack of legal recognition of a same-sex couple’s marriage, one partner can break off the marriage without any legal consequences. When it comes to inheritance, heterosexual spouses can take ownership of each other's assets even when there isn't a will. With same-sex couples, however, this is not the case. The property of a spouse might be inherited by the partner or family. There is no law specifying who inherits the property.

Arguments in Favor of Same-Sex Marriages :

A : Rights Constitutionally Protected

These are some of the arguments given by supporters of same-sex marriage. They claim that this legalization shouldn't be done in accordance with the Indian Constitution. Our constitution promises rights to liberty, equality, and privacy. If a heterosexual couple can legally get married, denying the legalization of same-sex marriages goes against the provisions of the right to equality. According to them, the court has intervened in cases involving inter-caste and inter-religious marriages. So why can't the court support same-sex marriages? 

Many legal experts have pointed out that legalizing same-sex marriage does not necessarily involve changing articles of the Constitution. All it requires are a few amendments to the Special Marriage Act. Legal experts claim that the act should be made gender-neutral, i.e., like heterosexual marriages, same-sex marriages should be legally recognized under the act.

B : Laws Change Attitude

The second argument proposed by LGBTQ+ supporters is that by changing the law, people's opinions could be changed. According to one survey, there has been an improvement in the general acceptance of the LGBTQ+ population since Section 377 was decriminalized. A community member said the 2018 judgment gave him the courage to express his identity more openly. They have noticed a shift in people's perspectives.

Furthermore, there has been less harassment from the police and increased acceptance by families. Another survey found that between 1990 and 2014, the share of Indians who believed "homosexuality is never justifiable" decreased significantly. This could be because the Delhi High Court decided to legalize gay sex in 2009.

C : Queer Indian History

The third argument is that there have always been same-sex relationships in India. According to historian Harbans Mukhia, because of their Christian religious beliefs, the British criminalized homosexuality in India in the 19th century. 

But both Hindu and Muslim histories show multiple mentions of homosexual relationships, be it in the Khajuraho temple of Madhya Pradesh or the Hindu text Kamasutra.

According to Deepanshi Mehrotra, Lord Hanuman tells the other characters in Valmiki's Ramayana that he saw two rakshasa women kissing when he was returning from visiting Goddess Sita in Lanka. Devdutt Patnayak shared that Mitra and Varuna, both male gods, are said to have a child. Shikandi, who was responsible for Bhishma's death, is mentioned in the Mahabharatha. She was born as a daughter but raised as a man.

In Muslim history, Shah Hussain, a Sufi poet, is believed to have fallen in love with Madho Lal, a Hindu boy. Forget about this Sufi saint; even the Mughal Emperor experienced something similar. In his memoir, Baburnama, Babur enunciates his attraction towards a boy named Baburi in Kabul. 

Now, the counterargument is that in Indian history, only homosexual relationships and not same-sex marriages were present. So, why should such marriages be legalized?

D: Brain Drain

The fourth argument is that countries all over the world have accorded this right to same-sex couples. On social media, you would have seen images of same-sex marriages. Many people also desire to get married this way. India may experience a brain drain if they are unable to. The argument is that talented LGBTQ+ people would leave India if they weren't accorded suitable rights and settle in a foreign country where same-sex marriages are recognized.

For example, Saattvic, an economist and actor in the Indian film industry, moved to Canada in 2020 with his partner to live as a family. He said well-off people wouldn't leave India if same-sex marriages weren't recognized.

Arguments against same sex marriage :

Challenging Family Marriage :

Let us now consider the arguments of those who oppose same-sex marriage. They argue that same-sex marriages violate the fundamental unit of our society—the family. It's also argued that legalizing same-sex marriage is copying Western culture and violating Indian values. For example, the RSS said that ‘marriage is not for pleasure'.

As same-sex couples can't procreate, what's the use of their marital union? There have been protests outside the Supreme Court demanding that the Court shouldn't even entertain such pleas. It is argued in opposition that homosexuality is not a Western value. Same-sex relationships have a long history in India.

The secondary argument is that the purpose of marriage isn't just procreation. There are homosexual couples who don't have kids, yet their marriages are considered valid. The fact that there are heterosexual couples without children acts as a counterbalance to this. 

According to a 10-year-old survey, approximately 2.5% of Indian couples do not have children. As a result, many people argue that laws should not be amended based on an exception. They should be based on the standard scenario of a heterosexual couple with a child. As a result, many people say that the goal of marriage is to procreate. Same-sex couples can't procreate.

India Not Ready :

LGBTQ+ supporters argue that many foreign countries have legalized same-sex marriages. However, Taiwan is the only nation in Asia to have made such a move. Thus, opponents argue that India isn't prepared for the legalization of same-sex marriage. Economically developed nations are more likely to support homosexuality, according to various research studies. As you can see on this map, most developed countries have made same-sex marriages legal. There's an exception: Japan. Japan is a developed country but hasn't legalized same-sex marriage. But the Japanese judiciary declared last year that the ruling was unreasonable.

Supporters of LGBTQ+ marriage say that no country is fully prepared for same-sex marriage. Only a law that allows such marriages may affect social transformation. It's because those who identify as LGBTQ+ experience discrimination in society. Nonetheless, some believe that such a law would not necessarily change society. There are several instances of this. For instance, Sunaina, an interior designer, says her life hasn't changed much since the 2018 verdict. She claims she is unable to identify herself publicly yet. She comes from a middle-class family where discussion of homosexuality is forbidden. "We are not considered criminals anymore, but the mindset of society is still the same."

21-year-old Anjana Hareesh, who identifies as bisexual, said her family abused her physically and forced her to undergo conversion therapy’ to cure her bisexuality. This is why some people like Zara Flavia D'Mello feel that the legalization of same-sex marriage should be the next step. The next stage should be to launch anti-discrimination programs that can influence public opinion.

Childhood Physiological Impact :

The third argument opposing same-sex marriage states that such marriages could be harmful to children. Sara McLanahan, a sociologist at Princeton University, said that to design a system where a child's basic needs were adequately met, we would have to do without something quite similar to a heterosexual couple. According to studies, a child's growth is influenced in a special way by both the mother and the father. Recent studies reveal that children of same-sex couples fare just as well as those of heterosexual couples, according to LGBTQ+ supporters.

Religion :

The fourth argument is that same-sex marriages go against religion. Many religious groups condemn homosexuality. For instance, the All-India Muslim Personal Law Board (AIMPLB) opposes homosexuality. There's no all-encompassing religious body in Hinduism that could condemn or support same-sex marriages. According to Devdutt Pattanaik, Hinduism encourages same-sex marriages. But the RSS general secretary is opposed to these marriages.

Most Indians say that religion is important in their lives. If the religion didn't allow such unions, they would go against its tenets. What's the government's stand on this? According to the government, the institution of marriage is critical for Indian society, and same-sex marriages cannot be accepted and cannot be a part of society. There is no uniform civil code in India.

Hindu Marriage Law, Christian Marriage Law, Muslim Marriage Law, and Special Marriage Law are the four marriage laws in India. But at the same time, the government has raised an important point: even if same-sex marriages are to be legalised, it should be done by Parliament and not the Court. If the court starts to pass laws, Parliament's role in the process will be undermined. The government believes that Parliament needs to examine the consequences of same-sex marriages on children and society. And based on this examination, it will come to a decision. Many people argue that the court is aware of this.

There was no discussion of this issue in Parliament in 2015. It rejected Shashi Tharoor’s private bill. That's why the court had to step in. The courts will not interfere if Parliament does its job properly. Now, how do we solve this matter? One measure is the creation of a separate "civil union." What's a civil union? A civil union is a marriage-like partnership between two individuals who can enjoy legal benefits such as inheritance and tax laws. But it's different from traditional weddings. However, it differs from traditional marriage. So, how do a marriage and a civil union differ from one another? The distinction is that religion does not validate a civil union. These marriages would fall under the Special Marriage Act because India lacks a unified civil code. This is one measure. Another measure is to recognise same-sex marriages under the existing laws. For example, Abhijit Iyer-Mitra claims that the Hindu Marriage Act does not distinguish between heterosexual and homosexual marriages. The law simply states, ”A marriage may be solemnised between any two Hindus.“ Similarly, same-sex marriages are not prohibited under the Special Marriage Act. The term 'each party' is used in the law. A party can be a woman or a man. Thus, there's no need to change the laws.

Conclusion :

As you can see, society is divided into two camps. One call that supports same-sex marriages. And another that opposes them.

If we talk about psychologist Jonathan Haidt, who described the differences between liberals and conservatives, he mentions five moral values.

Renowned psychologist Jonathan Haidt affirms that every human subscribes to five basic moral foundations. Care/Harm: We tend to ensure that nobody is hurt. Fairness/ Reciprocity: giving everyone an equal chance. In-group/ Loyalty: one's loyalty to the group they identify with. Authority/Respect: a feeling of reverence for a leader. Purity/ Sanctity: an idea that attaches the value of purity and impurity to an entity.

People give varying degrees of importance to these five foundations. Those who support same-sex marriage value the foundations of care and fairness. They want to ensure the LGBTQ+ community isn't mistreated. If heterosexual couples can get married, under the foundations of fairness, homosexual couples should be allowed to get legally married as well. Those who oppose same-sex marriages value the foundations of In-Group/ Loyalty and Purity/ Sanctity. They argue that same-sex marriages aren’t legal in India. They don't want such people to be a part of society. They also value the foundation of Purity. Such marriages are condemned by religion. Thus, they shouldn't be legalized.

Personally, I belong to the first camp. I value the foundations of harm and fairness. I want same-sex marriages to be legal. You can make your decision on your own. But do tell me which moral foundations you value the most. Your thoughts are welcome in the comment section. Write down your thoughts and let others know what you think about it.