Author : Aparna Goswami, Student at University Institute of Legal Studies, Punjab University.
According to a document submitted by Government of India to our Supreme Court in 2012, there are 25 lakh gay and 4.88 lakh transgender people living in India. Representing this big part of our population, recently two petitions by two homosexual couples have been made in Delhi High Court for the legal recognition of homosexual marriages. Responding to this plea the comments made by solicitor general mirrored the views of a major section of our society and were subject to much controversy. In order to successfully legalise homosexual marriages, general arguments questioning the naturality and cultural acceptance including others needs to be opposed. It is also necessary to see how our law sanctions certain legal rights of LGBTQIA+ community.
ARGUMENTS AGAINST HOMOSEXUAL MARRIAGES AND THEIR FAILINGS.
- Homosexuality is Unnatural
One of the earliest arguments given against homosexuality is that it is unnatural, which means something that hasn’t originated in nature but is an acquired trait. Hence marriage, which is viewed in a sacred light by our society, is considered sacrilege when entered into by homosexuals.
Due to this widespread opinion even after the decriminalisation of consensual homosexual acts 2 years ago, homosexual people are still fighting to strive in our society.
However just a bit of research into the matter suggests quite the opposite. In nature there are many examples of homosexual relationships. Studies show that over 1,000 species of animals show homosexual behaviours ranging from co-parenting to carnal relations including animals like lions, giraffes, sheep, bonobo apes and many species of birds. Genetically speaking 1 in 1500 to 1 in 200 babies are born with intersex conditions in which their anatomy is neither typically male or female. Moreover, scientific studies have refuted the archaic claim of homosexuality being a mental disorder and now propose that sexual preference is innate to a person and an effect of various gene variants  showing a clear link to homosexuality. All of these scientific evidences refute the belief that homosexuality or sexual orientation in general is either a choice or a trait developed by human beings to fulfil unnatural carnal desires. Having physical or emotional attraction towards the same sex is therefore as natural as having these feelings for the opposite sex.
- Homosexuality is against Indian culture and religion:
It is a general opinion among a majority in our country that Indian religion and culture condemn and punishes homosexuality. Recently while opposing the PIL in Delhi high court, solicitor general Tushar Mehta quoted the same argument. But is it true? Does Indian culture, that is centuries old, condemn homosexuality and same-sex marriages? In Hindu mythology and epics there are various prominent examples of deities having queer, homosexual and intersexual characteristics. Lord Shiva is sometimes portrayed as “Ardhanarishvara”, a half male and half female deity, unifying male and female natures. Vaishnava culture shows Shri Krishna, another prominent Hindu deity, roaming around in forests of Vrindavan in female attire. Lord Ayyappa, mainly worshipped in South India, is the son of male deities Lord Shiva and Lord Vishnu. How can a culture which widely accept and worship these deities, not accept such traits in its followers? Not only its deities but its scriptures and temples also show the same story. The temples of Khajuraho which were built around 11th century depict various carvings and drawings of people engaging in homosexual activities. Kama Sutra, believed to have been written in 3 century A.D., includes references to the third gender (Tritiya Prakriti) and lesbian women (Svairini). A very revered character in the “Mahabharata” epic is Shikhandi who was born a girl but was raised as a warrior prince. In Hindu sources of law like Manu Smriti, which is known widely for its narrowmindedness and misogynistic characteristics, there is no condemnation of homosexual acts. Most Smritis take a neutral position on homosexuality. In Hinduism marriage is considered a union of souls and souls are believed to not have a gender. From these examples it is very clear that Hinduism does not discriminate between individuals because of their sexual orientation. So, the question that arises is why, after centuries of acceptance and even respect, we have been led to believe this fallacy? This is an effect of hundreds of years of colonialism. India has been ruled by both Mughal and British rulers who upheld laws favouring their own religious beliefs. This resulted in the amalgamation of their personal and religious beliefs with the general public over centuries. In fact, the law criminalising homosexual acts, which was overthrown by Indian Supreme Court in 2018, was a British colonial era law. Thus, depicts that the acceptance of homosexuality is actually rooted in our ancient liberal beliefs, contrary to the belief that it is a western or modern influence.
- Homosexuality is threatening to the right to freedom of religion.
Indian constitution provides freedom of religion as a fundamental right under Articles 25-28. It has been argued that allowing legalisation of same sex marriages will hamper the right to religious freedom of a majority of people.
There are a couple of things wrong with this argument. Firstly, as we have seen above, Hinduism that is the religion of almost 80% of the population of India has never been opposed to homosexuality and has always treated people belonging to LGBTQIA+ community equally and with respect.
With that being established there are two ways this argument can be refuted.
- Since homosexual representation has been a part of some cultures and religions too, this means that the rights that are granted to straight people of that religion extend to LGBTQIA+ couples of the same religion too. Hence the right to reasonable freedom of religion applies to both the parties in question, eliminating the logic behind the apparent threat. This renders the original argument illogical.
- In our constitution fundamental rights such as Right to freedom of religion has reasonable restrictions and limitations. One such restriction dictates that an individual can exercise their fundamental rights only in such a way that doesn’t violate fundamental rights of another person. One person exercising their right to religious freedom cannot violate another person’s right to be treated equally (Art 14) and to not be discriminated against (Art 15).
Supreme Court of India, in March 2018 ruled that “The right to marry a person of one’s choice is integral to Article 21 (right to life and personal liberty) of the constitution. So to devoid any Indian citizen of the opportunity to marry a person of their choice without discrimination would be a violation of their fundamental rights.
Moreover, the SC of India has also imposed certain restrictions of public order, health, social welfare on Article 25 i.e. the right to free practice, profession and propagation of religion. Under which the religious freedom of a particular group can be overlooked if it poses a threat to public order, health, morality and welfare. Hence it can be seen that not only does the fundamental right of religious freedom expands to homosexuals too but also that our law mandates that homosexuals also have the right to equality and marriage which can not be violated by someone else’s enjoyment of own fundamental rights.
- There are many Legal complexities in recognising homosexual marriages.
In response to the plea seeking legalisation of same sex marriages Tushar Mehta pointed out that there are many civil and criminal laws recognising marriage to be only between a man and a woman and asked how the court deem to interpret these laws for homosexual couples. Further elaborating this argument he quoted the different legal ages for marriage of male and female counterparts, Sec 498 of IPC which provides imprisonment for mental and physical torture of a woman by her husband and her in-laws, the Domestic Violence Act of 2005 and other laws which defined marriage to be between only a man and a woman and he drew the High Court’s attention to the difficulty same sex marriages will pose to the interpretation of such laws.
This argument specifies exactly why there is a need to de-gender our laws. It brings out the stereotyped roles of gender under our legal system. In domestic violence cases our laws automatically label the woman as the victim and man the perpetrator and outright reject the idea of a man being the victim of violence. In addition to physical violence, Mental and emotional torture in a marriage also needs to be recognised when the man is at the receiving end of it. Moreover, provisions of personal laws that deal with succession, adoption, property matters and other issues use words like husband and wife which makes it even more difficult to incorporate homosexual families in our legal system hence discriminating against them. As of now, we are in a stump as to who will be called the husband and who will be designated the wife. The legal system hence naturally lags behind when same sex couples are considered for marital roles. How can we guarantee to all citizens justice and equality, which are the pillars of our constitution, if the existing law of the land is discriminating?.
These are just a few examples which depict how our laws condones gender stereotypes and also ignores the right of homosexuals to enjoy the same rights as everyone else. Changing these highly stereotyped laws which consider a heterosexual family to be the standard and using more gender-neutral terms will not only lead to true gender equality but will also make it easier for LGBTQIA+ couples to enjoy their legal rights as a citizen of India that they are entitled to and live with dignity.
WHY IS LEGAL RECOGNITION OF SAME-SEX MARRIAGES IMPORTANT?
Having refuted the arguments generally used against homosexual acts and marriage, the question that arises is why? Consensual Homosexual acts have already been decriminalised then why go to all this trouble to recognise homosexual marriages? This thought stems from a deep-rooted prejudice against people belonging to LGBTQIA+. The mere posing of this question shows how majority of our straight population considers themselves to be somehow superior to homosexuals and do not consider them worthy of the basic rights that they themselves freely enjoy. Our constitution, however, does not discriminate. It has been established in Navtej Singh Johar v. Union of India that Art 14,15 and 21 provides homosexuals the right to be treated equally, without discrimination and are entitled to a life of dignity and privacy respectively. The question is, does the right to marry comes under the fundamental rights provided to Indian citizens? In Justice K.S. Puttaswamy v. UOI, it was held by Justice Chandrachud that “family, marriage, procreation and sexual orientation is integral to the dignity of an individual” which is provided for in Art 21. In that judgement 5/9 judges also held that Indian citizens have a right to family life which includes marriage. Furthermore, in march 2018 Judgement of the famous Hadiya case the then CJI Deepak Mishra held that the right to form a union which can be a mental, emotional or sexual union including marriage is a fundamental right of an Indian citizen under Art 21 of The Constitution of India. He went ahead to state that marriage does not equals procreation, neither is procreation a necessary condition of marriage under personal laws. From this it is clear that right to marry along with the right to have a family is a fundamental right and should be granted to all citizens without discrimination. Hence denying the same to homosexual couples holds no legal justification.
Also, it is important to note that there are a great number of rights that are granted to married couples and not to unmarried people. Legal benefits such as succession rights, right to maintenance, pension, life insurance returns are not available to unmarried couples. Economic benefits from laws like the Employment Provident Fund Scheme, 1952 and Workmen’s Compensation Act, 1923 are given only to those related by blood or marriage. Moreover even though adoption is now available to unmarried couples and single people, they have found it still difficult to successfully adopt.  Hence this prevents homosexual people from enjoying the rights of a legal spouse.
We have seen how the arguments used against recognition of homosexuality and homosexual marriages are based on wrong facts and beliefs. Homosexuality is natural and deeply embedded in age old Indian Culture. Legal recognition of homosexual marriages will not only eradicate other stereotyped provisions of our legal system, hence promoting our non-discriminatory and egalitarian constitutional standards but also give a new definition to right to freedom of religion. Not giving married homosexuals the legal status of a spouse is discriminatory and against our constitutional preaching. It also devoid them of the plethora of legal and social benefits that come with marital designations. However even after the decriminalisation of homosexuality 2 years ago, LGTBTQIA+ individuals are still fighting against societal prejudices and discriminatory practices. Hence it will be the same for married couples even if this constitutional right to marry and its legal recognition is granted to them. But legal precedent is still of immense importance as great social changes, as history has proven, follow pivotal legal movements such as this one. A historic change is upon us and we believe in our exceptionally capable judiciary to once again rule in the favour of its public.
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Justice K. S. Puttaswamy (Retd.) and Anr. vs Union of India And Ors. (2017) 10 SCC 1
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