The law protecting LGBTQ+ community in India has come a long way in recent years. Till recently Section 377 of the India Constitution stated that any person who voluntarily had carnal intercourse against the order of nature with any man, woman or animal would be punished, thus criminalizing the entire LGBTQ+ community. However in 2018, The Supreme Court of India has in a path breaking and bold judgement recognized the rights of the community and has decriminalized the historic Section 377 of the Indian Penal code in a 200+ page judgement.
There has been a lot of argument in and outside the Courts against declaring such a section as unconstitutional. For instance, one of the arguments made was:
“If Section 377 is declared unconstitutional, then the family system which is the bulwark of social culture will be in shambles, the institution of marriage will be detrimentally affected and rampant homosexual activities for money would tempt and corrupt young Indians into this trade.”
This is not the mindset or thought process of just a few people but in fact is a part of the thinking of the larger society.
The fight for equality by the LGBTQ+ community started around 20 years ago. However, this case is what changed the law and created a path for progress. In the year 2016, Navtej (a dancer who identified himself as a part of the Queer Community) filed a Writ Petition stating that Section 377 violated their Right to Live and Right to Privacy (Article 21). According to the petitioner, ‘relationship’ under Article 21 refers to a personal choice within your own space and capacity. They claimed that Section 377 was unconstitutional in its right to define and constrict a person to whom they should love and it infringed on the rights bestowed by Article 21.
India like many other countries around the world only believed in the concept of heterosexuals (a relationship between a man and a woman). Declaring Section 377 as unconstitutional and recognizing LGBTQ+ relationships itself was a big step for a country as large and diverse as India, comprising of people from numerous religions and regions.
However the battle does not end here. Legalizing the relationship does not legalize the marriage and the main question that arises is that, does this judgement create a path for same-sex marriage as well? If yes, it will lead to a lot of changes, from the definition of marriage, the influence of religion to Government policies.
Section 377 has gone through a lot of to and fro swings over the years. It was first brought up by Naz Foundation in the year 2001. Naz foundation is the NGO that filed a PIL to de-criminalize the section as it encouraged discriminatory attitude and harassment towards the LGBT community. It was first dismissed in the year 2004 but on civil appeal, the Delhi High Court was made to address the case and the court declared section 377 as unconstitutional in 2009.
In 2013, an appeal was filed by Suresh Kuman Koushal (Suresh Kuman Koushal v. Naz Foundation, 2013) in The Supreme Court where a two Judge Bench reversed the 2009 Delhi High Court Judgement and Section 377 was re-instated.
Again in 2016, a writ petition was filed by Navtej a dancer (Navtej Singh Johar vs Union of India) in the Supreme Court of India and a five Judge Bench reversed the previous judgement and declared Section 377 unconstitutional.
This is where the law stands now.
Marriage as an Institution
Marriage as an institution is a set of values, social norms, customs and legal restraints that regulate human relations. Even though marriage is supposed to be a private institution, it has always been regulated by different norms and regulations, society, religious perception, customs etc. These concept and beliefs have also changed over a period of time, resulting in changes and the evolution in marriage. Over the years, there have been multiple changes in marriage but what remained constant was the definition of it as a heterosexual union, precluding homosexuality and making it one of the biggest taboos in society.
The general argument against homosexual union is that the primary (not exclusive) proposition of marriage is to procreate stating that the private incentives of men and women need to be satisfied. Apart from this, another argument used often is that the order of nature needs to grow and that can only be done through procreation.
However, what must be understood by everybody is that, there are heterosexual relationships where the couple do not want to procreate or an elderly couple that cannot procreate or even an infertile couple. Such relationships still come under the ambit of marriage. We as humans also need to start putting our individual autonomy over social interest and private and social incentive. Science has since shown that homosexuality is not chosen by individuals, the sexual orientation of people is innate and not an acquired characteristic.
If the Government were to legalize same-sex marriage, the legal framework with regard to marriage would have to go through a complete reevaluation. Currently, the law only includes marriage between a man and a woman (heterosexuals) but if homosexuals derive the right to get married, then marriage will be divided into three types, heterosexuals, gays and lesbians. The relationship between these forms is comparatively different and would require separate rules and regulations.
As mentioned before the laws that regulate heterosexual relationships and marriages are for its primary objective of procreation. It is based on the biological process and gender role that is to be played by both the parties. The laws protect the weaker party in terms of financial aid (alimony to the wife if a divorce takes place) or try to promote stability and cooperation.
Laws with regard to marriage, children and adoption have not changed drastically over the years, in-fact they have been constant across time and culture due to the fact that the issues across heterosexual couples remain the same.
In the case of homosexual relationships, the partners perform the same gender role and there is no biological difference as observed in heterosexual relationships. The same set of laws cannot be used in this case due to the fact that the entire concept of the relationship is different.
Another decision that influences marriage laws in India are the numerous religious practices and customs that exist. However it cannot be considered as an excuse to deprive any citizen of his or her right to marriage.
Currently, a male couple in Kochi (Nikesh Usha Pushkaran and Sonu MS) is fighting a legal battle to solemnize their marriage under the Special Marriages Act, 1954(SMA). They tied the knot in 2018 but have still not been legally recognized as married.
The SMA is an act that was formed to recognize marriages that do not fall under the ambit of personal religious laws. However the act only recognizes heterosexual relationships and not homosexuality. The Act is being questioned on the basis of violation of Article 14 (Right to Equality). They feel the SMA is unconstitutional and violates their right to be treated equally.
The Kerala High Court judge has admitted their petition and has sent notices to the state government and the Centre.
Following the 2018 judgement recognizing same sex relationship, the time has come to legitimize these relationships with new laws. However this will not be easy and there will be challenges as most part of Indian society still believes that the only kind of relationship that exists or must exist are heterosexual relationships. Though the Navtej case has decriminalized homosexuality in the 2018, but the ruling has provided no provision such as civil rights and liberties like adoption (by LGBTQ+ community) and marriage to same-sex couples.
The judgement in the Navtej Case has definitely opened a path for same-sex marriage being legalized in India. Since the Naz foundation case (Naz Foundation v. Govt. of NCT of Delhi and Others), there was scope of acceptance of the LGBTQ+ community in the society. The process of gaining the basic rights by the LGBTQ+ community did not happen overnight.
Change is always a slow process and until the next step takes place, we must continue to spread more awareness with regards to acceptance of homosexuality. While any number of laws can be made, it is important to get the support of the people to make it more effective. This way we will be creating a community that accepts everybody and not just a particular group of people and it will speed up the process of ensuring every citizen of India feels included and accepted.
In the words of the Greek Philosopher Heraclitus, ‘The only constant in life is change’ and this applies to the Laws of the Country as well.