Representative Image: Telegraph India 

Among the many topics that are in the popular public discussion today, one major issue is that of ‘Same-sex Marriage’. The debate has been whether it should be legalised or not, which it is not currently. The important point here is that ‘Homosexuality’ has already been decriminalised in the country back in 2018. So, the question here is whether those Homosexuals, who are “not” criminals any more, should they be allowed to marry.

The issue has been sensitive in nature, not just in India but even worldwide. One can understand the gravity of the situation, merely by the fact that Taiwan happens to be the only Asian country to have legalised same-sex marriage. However, almost every developed country has legalised it. So, in India, what is the social condition, what are the arguments for and against it, and what should be the direction for us, we will discuss this in this Blog.

Photo: Map showing countries where same-sex marriage is legalised (Photo: Human Rights Campaign)

A Brief Look at the Timeline of Homosexuality

First of all, I would like to list down some ancient examples of the issue. The reference to homosexuality, although not directly, can be found in Hindu religious scriptures. In Valmiki’s Ramayana, there is an instance, when Lord Hanuman is going in search of ‘Sanjeevni Booti’ and he sees two female demons making love. In Rig Veda, two male gods Mitra and Varuna give birth to a male child. Examples are also quite visible in several Hindu temples, especially in Khajuraho, and in the famous scripture ‘Kamasutra‘ as well. Among Muslims, also a famous poet Shah Hussain, a gay who defied social norms and loved a Hindu boy named Madhu Laal. For the record, their graves are still buried alongside each other. Even Mughal ruler Babur has said in Babur-Nama (his autobiography) that he once got attracted to a male boy in Kabul.

However, in modern history, or as we can say that ‘formulated’ history, there are little to no such references. The issue of homosexuality has been a taboo throughout, there is no doubt about that. But, from the legal point of view, the very act of two people from same-sex indulging in sexual intercourse was ILLEGAL. There were cases, where people literally complained to the police about someone being queer, and the accused was arrested. The discrimination faced by them in absence of any law too was very high.

There were no efforts under any government to reform the system. Although, Congress leader Shashi Tharoor did bring a private member bill, not once but twice seeking to decriminalise homosexuality, but unfortunately, it didn’t get any major support. Finally, it was only in 2018, that the Supreme Court ruled away with Article 377, a colonial law formed as long back as 1877. Now, from that very day, it’s no longer a crime for someone to be homosexual. As per different surveys, the verdict has helped in clamping down the discrimination against the queers to quite an extent (not completely we all know).

But, this was not the end of the suffering for the queers. Even though they were no longer criminals, so were they not “equal citizens” like others. As I said above the discrimination against them remained. And, more than that there are certain legal rights too, that they have remained deprived of. The most important of which is the right to MARRY. Now, it is no rocket science that a queer will ‘preferably’ marry a queer. But, that’s the drill. As per our laws, homosexual people can stay together as partners, and do whatever they want to, except to marry. And, that’s what the whole debate is about. The matter is currently under a five-judge Supreme Court bench led by Chief Justice of India DY CHandrachud, and in their hands, lies the direction the future of homosexuals in India will go.

Discrimination Faced by Queers

Not being able to marry, leads to certain challenges for homosexual people. Firstly, they can’t adopt a child, because adoption is only allowed for married couples or single parents. This deprives them of fostering a child together, even if they want to do that. Secondly, there are no inheritance laws for unmarried couples. So, if a Homosexual person dies, their partner will have no ‘legal’ right over the partner’s properties, even if his partner would have wanted him to have them. Here, one thing we all should remember is that a huge number of homosexuals are already disbanded by their parents, so if they won’t get any inheritance from their partner, their condition will become more miserable.

Thirdly, there is no social security or insurance for queer partners. In cases like hospital admission, the queer partner can’t even sign the form for their loved one. All these examples, and there are plenty more, clearly show the discrimination homosexual people are facing. Unarguably, this is a violation of the ‘Right to Equality’ of our Constitution.

Photo: The centre and the right wing have severely opposed same-sex marriage (Photo: Hindustan Times)

Major arguments opposing Same-sex Marriage

“Same-sex marriage is neither recognised nor accepted in any uncodified personal law. Some left-liberal democratic people and activists are trying to recognise same-sex marriage and pander to the West. It will cause complete havoc with the delicate balance of personal laws in the country”.

This was not me, this is what the official stand of the government has been on the issue. The centre has also submitted a similar response to the apex court bench hearing the petition.

Other than the centre, several ‘other sections have also raised objections against the issue. They have asserted that marriage is an important element in society, and traditionally has occurred only between people of “opposite biological sexes”. So, as per their claim, if people of same-sex start marrying each other, it would break the ‘institution’ of marriage. RSS has particularly said that the “primary reason” for doing marriage is to bear children (bear…not adopt), and since that can’t be the case with same-sex marriage, it should not be done at all. They have also stated that the countries where same-sex marriage is legal, have reached a certain threshold in societal terms, and India can’t be compared to them right away.

Here, a very interesting thing to note is that religious leaders are always at loggerheads with each other on one matter or another. But on this particular matter, almost all religious bodies have not just toed similar lines, but even their “scripts” have been more or less the same. From RSS, Jamaat-e-Islami Hind, Jamiat Ulama-i-Hind, the Communion of Churches, and the Akal Takht, along with representatives of the Ajmer dargah and Jain gurus have submitted petitions in Supreme Court, against same-sex marriage. Quite ironic, the religious bodies got to choose only this topic to agree upon.

Busting the Arguments one-by-one

First of all, let me put things into a little perspective. In India, around 7-8 % of people (at least) are ‘Homosexuals’. And, when we look at a country the size of India, the number is no longer small, it makes more than 10 crore people…yes you read that right. So, anyone thinking that the matter is insignificant enough to be brushed off should take a closer look.

Coming on to the arguments, those saying that the only reason for marriage is bearing children, to them I would ask, aren’t there many couples who do marry but don’t bear a child out of “choice”? (the word authoritarians hate) Aren’t those marriages legal? Next, those saying that our country is not “ready” for it. Well, one can’t be ready for something without trying. And, by the way, what is the time frame by when we will be “ready” to accept same-sex marriage? 10, 20, 50 or 100 years? Till then, should queer people keep on facing discrimination? Next, those advocating the matter only to be passed by Parliament and not by judges. Well, we have sufficient evidence to state that Parliament have never paid heed to this subject. It was only after this matter wasn’t taken up, that the court had to intervene, as was also the case back in 2018.

Many will point out, how one can allow something which is facing such stiff resistance from a large section. Well, it is definitely important that we take the view from all sides before arriving at a decision. But, in this particular case, there ought to be certain exceptions. The reason is the rights being demanded here are NOT mutually exhaustive in nature. I mean, if we grant those rights to homosexuals, it will not snatch away the rights of heterosexuals in any way. They can still carry on with what they do. So, there is no ‘logical’ point in heterosexuals voicing against an issue which ‘solely’ concerns homosexuals.

Photo: Nikesh and Sonu, the first gay couple from Kerala  (Photo: Live Law)

Hoping for a positive verdict!

While concluding the topic, I would only say that as a citizen of the country, and rather as an active citizen of the country, it is very important that we look at the issue seriously. Today, the whole future of queers stands at a very crucial juncture. The direction where it will go depends on the verdict the five judges will arrive at. One thing is pretty sure, if the verdict goes against the legalisation of same-sex marriage, any respite for the queers is not coming before at least 50 years or so. However, with CJI Chandrachud heading the bench, I am hopeful about a positive verdict. I opine that the top court should go ahead with what it did five years back.

A country can only progress with progressive laws, and never with regressive ones. Today, India has the opportunity to set a precedent by legalising same-sex marriage. I hope that everyone belonging to the LGBTQ community are able to access equal rights just like all of us and lead a happy life.  Lastly, I would just say, while taking the decision everyone should also consider the impact their decision will have on those actually demanding these rights. Are we making them better off, or are actually leaving them in a more miserable condition? Or as Gandhiji says, “Think of the poorest person you know and see if your next act will be of any use to him”. 

JAI HIND