This article has been written by Shristi from Maharashtra National Law university, Aurangabad

Edited and published by Risha Fatema.

“Same-sex marriages go against Indian culture,” said the Indian government. Two months ago, on 6th January, the Supreme Court decided to address various petitions pending in different High Courts. These petitions were regarding same-sex marriages, asking whether they should be legalized in India or not. The supporters of the petitions said that India decriminalized homosexual relationships in 2018, “A ground-breaking verdict by the Supreme Court!” where “Homosexuality has been decriminalized.”¹ 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?² They believe that as homosexual relationships are legal, so should same-sex marriages.³ They say that not recognizing same-sex marriages violates the rights guaranteed in the Constitution.⁴ But the government holds an entirely different opinion. Our society is divided on this matter as well.Some argue that people have a right to marry, if they desire, whomever they like.⁵ Take the case of Supriyo Chakraborty⁶ and Abhay Dang from Bengal. They’ve been together for around 10 years, their families have accepted them, and they’ve even held a ring ceremony.

They want to get married but can’t because Indian law doesn’t recognize same-sex marriages. On the other hand, some argue that same-sex marriages go against Indian society. Because the family is the basic unit of Indian society. As same-sex couples can’t procreate, they can’t constitute a family. That’s why such marriages go against society. So, should India legalize same-sex marriages or not?⁷ This question needs discussion as it affects a lot of Indians. Reportedly, nearly 7-8% of the Indian population falls under the LGBTQ+ community.

How should we discuss this question?That’s what we’ll do in this article,We’ll try to understand the arguments presented by both sides —the supporters and the opponents. We can divide society into three groups.One that supports the legalization of homosexuality and same-sex marriages. Second, that supports the legalization of homosexuality but not marriage. And third, those who oppose the legalization of both. In this article, I’ll discuss the first and second groups. I’m not going to discuss the third group that claims that homosexuality should be illegal because I think the decision of 2018 put an end to this group’s argument.

Table of Contents

Brief History

On 6th Sept 2018, the Supreme Court scrapped section 377 of the Indian Penal code.⁸ This section criminalized homosexual relationships.⁹ Section 377 of the IPC was the first codified legislation on homosexuality in India and came into effect when India was under British rule. It was drafted by Lord Macaulay in 1838.¹⁰ This law prohibited any “unnatural sex against the order of nature.” Thus, according to this law, homosexuality was deemed “unnatural.” Being homosexual could land one in jail. Before independence, being outspoken about this law had harsh consequences. For example, some of you might know about the movie “Fire”. This movie was inspired by the novel “Lihaaf.” Published in 1942, Lihaaf is a story about a neglected wife who explores lesbian sex.The book was authored by Ismat Chugtai.¹¹ In 1946, she was leveled with charges of obscenity.

Mr. Aslam,¹² also an author, tried to persuade Chugtai to apologize and end the matter. To this Chugtai 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 1987¹³ when police officers Leela and Urmila from Bhopal were sacked from their job after getting “married” and coming out as a lesbian couple. Similarly, Author Payal Dhar, who identifies herself as a part of the LGBTQ+ community, says that back in the 80s and 90s, she had no terminology to describe how she viewed herself. She wrote that despite growing up in a family that considered itself progressive, she was forced to wear feminine clothes and rebuked for ‘wanting to be a boy’. 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 liberalized its economy, and LGBTQ+ activists gained inspiration from the idea of equality predominant in foreign countries. During this time, India’s first LGBT magazine, Bombay Dost, also started its publication. Society and the law were still against the LGBTQ+ community, but support emerged gradually. Sridhar Rangayan, a National Award winner filmmaker, said that the magazine gave a voice to the insecure gay youth of the country. In 2001, an NGO called Naz Foundation filed a petition challenging Section 377 in the Delhi High Court. The petition was stalled for nearly 8 years. The Delhi High Court dismissed the petition. The Supreme Court asked the High Court to reconsider the case.

Thus, in 2009, the Delhi High Court decriminalized homosexuality.¹⁴ The matter was taken to the Supreme Court. In 2012, the Supreme Court overturned the High Court’s decision by saying that over the past 150 years, less than 200 people were prosecuted under the section. “Thus, there was no need to scrap the law.” Things were not progressing in the Parliament either. In 2015, when Shashi Tharoor introduced a private member’s Bill to decriminalize homosexuality, the Lok Sabha voted against it. And finally, in 2018, the Supreme Court of India scrapped section 377. Finally, homosexuality was decriminalized. Decriminalisation is not enough, many of us might wonder if the Supreme Court has already decriminalized homosexuality and same-sex couples can even live together legally, why is there so much stress on the legal recognition of same-sex marriages? You can get a part of the answer to that question from the film ‘Badhai Do’.¹⁵ In the movie, Shardul and Suman, both of whom are homosexual, marry each other due to family pressure and live as a ‘normal’ couple. But they continue to see their partners.Such unions are called Lavender¹⁶ marriages. A gay man and a lesbian woman agree to marry each other, not necessarily out of love, to appear as a heterosexual couple to society. You would expect them to break off their marriage, right?But they decide to remain married. Why?- Because they wanted to adopt a baby.¹⁷ A same-sex couple can’t legally adopt a baby in India. According to Indian law, a single woman can adopt a child of any gender, while a single man is eligible only to adopt a male child.¹⁸ Thus, an LGBTQ+ person can apply for adoption as a single parent, with the other partner having no legal right over the child. The LGBTQ+ supporters stress how such laws create grounds for discrimination in society. There are many ‘family laws’ in India that regulate the matters of adoption, surrogacy, inheritance, etc. ‘Marriage’ plays a crucial part in all these laws. As LGBTQ+ couples can’t marry legally, they’re deprived of rights afforded by these laws. [“Only normal couples are considered valid for adoption under the law.”] Take the example of Sameer Samudra,¹⁹ who married his partner, Amit Gokhale, in the US nine years ago. The couple moved to India some years ago. They’ve been going through financial struggles because of the law. Sameer said he couldn’t get life insurance for his partner. They can’t apply for a joint house loan as their marriage has no legal recognition. Moreover, same-sex couples lack security and protection from the government and society.²⁰ For instance, in the case of marriages of heterosexual couples, one partner cannot simply walk away and marry someone else. Due to the lack of legal recognition of same-sex couple’s marriage, one partner can break off the marriage without any legal consequences. In matters of inheritance, heterosexual spouses can inherit each other’s property in the absence of a Will. But that’s not the case with same sex couples. A spouse’s property can be inherited by the partner or family.

Arguments in favour of same sex marriages

A) Rights Constitutionally Protected.²¹

There’s no law specifying who inherits the property. These are some of the arguments given by supporters of same-sex marriages. They claim that this legalization should be done in accordance with the Indian Constitution.²² Our Constitution promises rights of liberty, equality, and privacy. If a heterosexual couple can legally get married, denying to legalize same-sex marriages goes against the provision of the right to equality. They argue that the Court has intervened in the case of inter-caste and inter-religious marriages.²³ 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 amends to the Special Marriages 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.²⁴

B) Laws Change Attitude

The second argument proposed by LGBTQ+ supporters is that by changing the law,people’s opinions could also be changed. A study revealed that following the decriminalization of section 377, there has been an increase in societal acceptance of the LGBTQ+ community.²⁵

A community member said the 2018 judgment gave him the courage to express his identity more openly. He has witnessed a change in people’s opinions.²⁶ Moreover, there has been a reduction in harassment from police and more acceptance by families. Another survey showed that between 1990 and 2014, the share of Indian respondents who believed that “homosexuality is never justifiable” fell significantly. This could be because the Delhi High Court decided the legalize gay sex in 2009.

C) Queer Indian History

The third argument is that same-sex relationships in India date back to the past.²⁷ Historian Harbans Mukhia²⁸ says that the British criminalized homosexuality in India in the 19th century because of their Christian belief system. But both Hindu and Muslim history shows multiple mentions of homosexual relationships– be it the Khajuraho temple of Madhya Pradesh or the Hindu text Kamasutra.²⁹ Deepanshi Mehrotra wrote that Valmiki’s Ramayana states that when Lord Hanuman returned from Lanka after visiting Goddess Sita, he recounts to others about sighting two rakshasa women kissing. She shared that Mitra and Varuna—both male Gods are said to have a child.³⁰ Mahabharatha has the story of Shikandi, who was responsible for the death of Bhishma. She was born as a daughter but raised as a man. In Muslim history, the Sufi poet, Shah Hussain, is believed to have fallen in love with a Hindu boy, Madho Lal. Forget about this Sufi saint, even a Mughal Emperor had a similar experience. In his Memoir, Baburnama,³¹ Babur enunciates his attraction towards a boy named Baburi in Kabul.

Now, the counter-argument is:In Indian history, only homosexual relationships were present and not same-sex marriages. So, why should such marriages be legalized?³²

D) Brain Drain

The fourth argument is that countries all over the world have accorded this right to same-sex couples. You’d have come across pictures of same sex weddings on Instagram. Many want to get married like this as well. If they can’t, India could face a brain drain. The argument is that talented LGBTQ+ people would leave India if it doesn’t accord suitable rights and settle in a foreign country where same-sex marriages are recognized.

For example, Saatvic, an economist and an actor in the Indian film industry, moved to Canada in 2020 with his partner to live as a family.³³ He said well-off people would leave India if same-sex marriages weren’t recognized.Let’s turn to the arguments of the opponents of same-sex marriages.³⁴

Arguments against same sex marriages

A) Challenging Family, Marriage³⁵

They argue that same-sex marriages violate the fundamental unit of our society—the family. It’s also argued that legalizing same sex marriages is copying Western culture and violating Indian values. For instance, 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.

The counterargument is that homosexuality isn’t a Western value.Same-sex relationships in India date back to the past. The second argument is that the purpose of marriage isn’t just procreation. There are heterosexual couples who don’t have kids, yet their marriages are considered valid. This, in turn, is countered by the fact that heterosexual couples without kids are exceptions. A ten-year-old study showed that nearly 2.5% of Indian couples don’t have kids. Thus, many argue that laws shouldn’t be changed based on an exception. They should be designed on the standard scenario—of a heterosexual couple with a child.Thus, many argue that the purpose of marriage is procreation.Same-sex couples can’t procreate.

B) India might not be ready³⁶

LGBTQ+ supporters argue that many foreign countries have legalized same-sex marriages. But there’s only one country in Asia that has taken such a step—Taiwan.³⁷ Thus, the opponents argue that India isn’t prepared for the legalization of same-sex marriages. Several studies have shown that economically developed countries are more likely to approve of homosexuality.³⁸ As you can see in 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 marriages. But last year, the Japanese judiciary said its decision was irrational. LGBTQ+ supporters argue that no country is 100% prepared for same-sex marriages. Only a law supporting such marriages can bring a change in society. It’s because LGBTQ+ members face discrimination from society. But some people argue that such a law wouldn’t necessarily change society. There are several instances of this. 21-year-old Anjana Hareesh,³⁹ 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 feel that the legalization of same-sex marriage shouldn’t be the next step. The next step should be to initiate anti-discrimination programs that could change society’s opinion.

C) Childhood Psychological impact

The third argument opposing same-sex marriages states that such marriages could be harmful to children.⁴⁰ Sara McLanahan,⁴¹ a sociologist at Princeton University, said that to design a system where a child’s basic needs were met adequately, we would come up with something quite similar to a heterosexual couple. Studies⁴² have shown that both father and mother have a unique role in a child’s development. LGBTQ+ supporters point to recent research that shows children of same-sex couples fare just as well as those of heterosexual couples.⁴³

D) Religion⁴⁴

The fourth argument is that same-sex marriages go against religion. Many religions 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. Few People believes that Hinduism supports same-sex marriages. But the general secretary of RSS is against these marriages. Most Indians say that religion plays a crucial role in their lives. If the religion didn’t allow such unions, they would be going against the tenets.

E) Government’s Stance

What’s the government’s stand on this?The government claims that the institution of marriage is crucial for Indian society, and same-sex marriages can’t be part of society yet.⁴⁵ India does not have a Uniform civil code.⁴⁶

There are four marriage laws:

Hindu Marriage Law, Christian Marriage Law, Muslim Marriage Law, and Special Marriage Law. But at the same time, the government has raised an important point: even if same-sex marriages are to be legalized, it should be done by the Parliament and not the Court.⁴⁷

If the Court starts to pass laws, Parliament’s role in the process will get undermined. The government believes that the Parliament needs to examine the consequences of same sex marriages on children and society. And based on this examination, it would come to a decision. Many argue that Court is aware of this. In 2015, Parliament failed to hold a debate on this matter. It rejected Shashi Tharoor’s private bill.⁴⁸ That’s why the court had to step in. If Parliament does its job properly, the courts won’t intrude. Now, how should we solve this matter?

One measure is the creation of a separate “civil union.” What’s a civil union?⁴⁹ A civil union is a marriage-like partnership of two individuals who can enjoy legal benefits such as inheritance and tax laws. But it’s different from traditional marriages. So, what’s the difference between a marriage and a civil union?⁵⁰ The difference is that religion doesn’t validate a civil union.

As India lacks a uniform civil code, these marriages would fall under Special Marriage Act.⁵¹ This was one measure. Another measure is to recognize same-sex marriages under the existing laws. For example, some argues that Hindu Marriage Act does not distinguish between heterosexual and homosexual marriages. The law simply states, “A marriage may be solemnized between any two Hindus….” Similarly, the Special Marriage Act does not prohibit same-sex marriages. The law uses the term ‘each party.’ A party can either be a man or a woman. Thus, there’s no need to change the laws.⁵²

Conclusion

As you can see, society is divided into two camps.One camp that supports same-sex marriages.And another that opposes them.There is a psychologist Jonathan Haidt, who described the differences between liberals and conservatives.He mentions five moral values, where he explained why society is divided on this matter. 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. Basically, those who support same-sex marriages 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 foundation 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 samesex 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 these marriages to be legal. I want my homosexual friends to enjoy the rights that I do. Having the liberty of expression of interest you can make your decision on your own.