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Introduction
While talking about legitimating same sex marriage, I am reminded
of a story of a washer man and his donkey. The donkey refused to
move with the heavy bundle of clothes on his back from his house
to the pond. The washer man nailed a carrot to a stick, which was
tied in front of the animal's mouth. The donkey kept on moving
with a view to cat the priced vegetable - the ass goes on and the
carrot is un-reached. In the field of jurisprudence this shows how
some laws the proverbial ass, pursue, perpetually, the carrot of
the moral ideal.Is it not time we woke up to the reality, that
homosexuals are as normal as you and me. According to some study,
about at least 5-10% of population is gay. You can calculate and
see what the figure is for India. Even if it is not that high a
figure, we know that it is a quite common phenomenon. Its not good
in the Indian society but its is a pshchological phenomenan, you
can not help it. An increasing number of gay groups through out
the country and serious thinking among them is seen in India in
the last few years. Whether same sex marriage should be legalized
is more of a religious debate then a political one. While I
believe that marriage is a sacred union between man and woman, I
also believe that our country was founded on the principle that
everybody has the right to the pursuit of happiness. And if a man
marrying a man or a woman marrying a woman makes them happy then I
think it's okay. I do not believe it affects anyone negatively.
History:
Homosexuality has an ancient history in India. Ancient texts like
Rig-Veda which dates back around 1500 BC and sculptures and
vestiges depict sexual acts between women as revelations of a
feminine world where sexuality was based on pleasure and fertility
. The description of homosexual acts in the Kamasutra, the Harems
of young boys kept by Muslim Nawabs and Hindu Aristocrats, male
homosexuality in the Medieval Muslim history, evidences of sodomy
in the Tantric rituals are some historical evidences of same-sex
relationships
However, these experiences started losing their significance with
the advent of Vedic Brahmanism and, later on, of British
Colonialism. Giti claims that Aryan invasion dating to 1500 B.C
began to suppress homosexuality through the emerging dominance of
patriarchy . In the Manusmriti there are references to punishments
like loss of caste, heavy monetary fines and strokes of the whip
for gay and lesbian behavior. In the case of married women, it is
mentioned that 'luring of maids' is to be punished by shaving the
women bald, cutting of two fingers and then parading her on a
donkey. Manu's specifications of more severe punishments for
married women can suggest either a wide prevalence of such
relationships among married women or a greater acceptance of these
practices among unmarried women. In either cases, these references
point to the tensions in the norms of compulsory heterosexuality
prescribed by Brahmanical0 partite. Both sexual systems coexisted,
despite fluctuations in relative repression and freedom, until
British Colonialism when the destruction of images of homosexual
expression and sexual expression in general became more systematic
and blatant.
The homophobic and Victorian puritanical values regarded the
display of explicit sexual images as 'pornographic
and evil'.
The Western view, since the time of Colonial expansion, has been
strongly influenced by reproductive assumption about sexuality.
These puritanical values and attitudes were in turn mapped into
the interpretation of sexual activity among colonial people which
is evident from the responses to all forms of 'unnatural' sexual
practices. The Indian psyche accepted the Western 'moral
and psychological'
idea of sexuality being 'pathological' rather than the natural
expression of desire, which once used to be part of Indian
culture.
The last century witnessed major changes in the conception of
homosexuality. Since 1974, homosexuality ceased to be considered
an abnormal behaviour and was removed from the classification of
mental disorder. It was also de-criminalized in different
countries. Since then various states across the globe enacted
anti-discriminatory or equal opportunity laws and policies to
protect the rights of gays and lesbians. In 1994, South Africa
became the first nation to constitutionally safeguard the rights
of lesbians and gays. Canada, France, Luxembourg, Holland,
Slovenia, Spain, Norway, Denmark, Sweden and New Zealand also have
similar laws. In 1996, the US Supreme Court ordered that no state
could pass legislation that discriminated against homosexuals. In
India, so far no such progressive changes have taken place and the
homosexuals remain victims of violence in different forms
supported by the state and society.
The issue of homosexual conduct has come to this fore in recent
legal and political debates for three main reasons:
(I). Liberalization of the law (in the U.K., by the Sexual
Offences Act 1967 as amended in 2000 and some other countries by a
similar legislation) has brought with it a change in social
attitudes, so that the stigma attached to the homosexuality has to
a greater extent disappeared.
(II). Campaigns for lesbian and gay rights especially in the U.S.
have taken on an increasingly radical character, arguing for an
end to all forms of discrimination against homosexuality, and even
for the legalization of
same sex
marriages.
(III). The outbreak of HIV/AIDS which has been spread in western
countries to a great extent by homosexual activity between males,
has led to accusations and counter-accusations, often of a bitter
kind. Spain, Belgium and the Netherlands, as well as Canada in
allowing same-sex marriages. Same-sex acts are punishable by death
in nine countries around the world.
Arguments by those who don't want it to be legalized:
This is more of a religious debate then a political one. Large
number of people specially in India are opposing it, as they say
it is unnatural, uncouth and immoral. Prime Minister Mr. Manmohan
Singh on asking what did he think about the Canadian law of
homosexual marriages he replied it is not appreciated. Those
people who are opposing it their arguments are based on religious
and natural law belief. Some people don't consider them as natural
because they do not produce kids. Is it sacred if gay marriage is
allowed
God created Adam and Eve, we never find statements in Genesis
about Adam and Steve. Why break God's law by allowing gay marriage
If nature wanted same-sex people to live together, there would
only be one sex rather than different sexes. Our society is based
on opposite sex marriage. If gay marriage is OK, then why can't I
marry my cousin, or my sister, or my cat.
Don't I have the same rights as gays or are they now above the
rest of us.
Don't forget that the law is specific on this. It was created to
keep the fabric of society together. It goes against the laws of
the land that have been used for hundreds of years and were based
on the basis of the commandments.
How Law Deals With It In India:
There is no explicit mention of homosexuality or hemophilia in any
of the statute books of India. A person cannot be prosecuted for
being a homosexual or hemophilic. But the sexual act of sodomy is
a criminal offence. The major provisions of criminalisation of
same-sex acts if found in the Section 377 of the Indian Penal Code
(IPC) of 1860.
Whoever voluntarily has carnal intercourse against the order of
nature with any man, woman or animal shall be punished with
imprisonment of either description for a term which may extend to
ten years and should also be liable to fine.
The offence of homosexuality is read under this section as an
Unnatural Offence. The term
Carnal Intercourse
used in this section refers to sexual intercourse between men or
in other words, homosexual relationships. Section 377 of the
Indian Penal Code, was enacted by the British in 1860.
The Indian law against homosexuality seems to be too harsh. The
Constitutional validity of section-377 of IPC was challenged in
the Delhi High Court as being violative of fundamental rights
guaranteed under the Indian Constitution. Here it may be noted
that, in practically all crimes against human body listed under
the Indian Penal Code, some sort of physical violence or coercion
is an essential element of crime. The only exception is in the
favour of section-377, which criminalizes sexual activity that
leaves no victims. In the history of the statute from, 1860 in
1992 there was only 30 cases in the High Courts and Supreme Court
. " The small number of cases filed under this section shows that
this section is redundant and outdated and needs to be repealed
The Central Government has informed the Delhi High Court that
homosexuality cannot be legalized in India as the
Indian society is intolerant to the practice of
homosexuality/lesbianism.
To paraphrase, three things can be said about the government's
stance:
[a] the state has not just a function to, but actually a duty to
stop
unnatural sex,
or else the social order would break down, law loose its
legitimacy et al;
[b] that our society does not tolerate homosexuality, and
notwithstanding the universality of human rights or the universal
applicability of our fundamental rights and freedoms, its
criminalization is therefore justified; and
[c] that it is really not our thing, its something that happens
out there in the west, we do not have to copy that. In other words
the three pillars of the classic culture arguments to criminalize
the likes of us.
Why Should Be Legalized:
Arguments in favour of Decriminalizing Homosexuality: Gay and
lesbian rights activists from various parts of the countries were
protesting for their rights and for decriminalizing the homosexual
conduct. There is a big debate in our country too- whether it
should be legalized or not. I am giving some of the arguments in
favour of decriminalizing it, specifically in Indian context- in
view of Section-377 of the Indian Penal Code.
(1). It violates right to liberty guaranteed under Article-21 of
the Indian Constitution, which covers private consensual sexual
relations. The fundamental right to liberty (under Article-21)
prohibits the state from interfering with the private personal
activities of the individual
. The concept of privacy is so broad that no comprehensive and all
encompassing definition of the term can be given. In the case
National Coalition for Gay and Lesbian equality V. Ministry of
Justice , the South African court held that,
Privacy recognizes that we all have a right to a sphere of private
intimacy and autonomy which allows us to establish and nurture
human relationships without interference from the outside
community.
Even at the international level, the right to privacy has been
recognized in the favour of lesbians and gay man.
(2).
Criminalization of homosexual conduct is unreasonable and
arbitrary:
Infringement of, the right to equal protection before law requires
the determination of whether there is a rational and
objective basis to the classification introduced. There should be
a just and reasonable nexus between the classification and the
object sought to be achieved by the legislation. Section-377 of
IPC, its legislative objective is to criminalize all the sexual
activities which are
against the order of nature,
thus punishing the
unnatural sex.
Section-377 assumes that natural sexual act is that which is
performed for procreation. Hence, it thereby labels all forms of
non-procreative sexual act as unnatural. This gives a very narrow
view to the distinction between the procreative and
non-procreative sexual act. Hence, the legislative intent of
creating a public code of sexual morality has no rational nexus
with the classification created. Further the very object of the
section is vague, unreasonable, arbitrary and based up on the
stereotyped notion that sex is only for procreation. Now if this
presumption is accepted is correct then, what justifies the
policies of family planning and the use of the contraceptive
devices
(3).
Section-377 discriminates on the basis of sexual orientation:
forbidden under Article-15 of the Constitution. Article-15
prohibits discrimination on several grounds, which includes
Sex. By
prohibiting discrimination on the basis of sex, article-15
establishes that there is no standard behavioral pattern attached
to the gender. The prohibition on non-procreative sexual acts
imposed by section-377 prescribes traditional sexual relations
upon men and women. In so doing the provision discriminates
against the homosexuals on the basis of their sexuality and
therefore constitutes discrimination on the basis of sexual
orientation.
(4).
Section-377 violates the enjoyment of civil laws and gay men and
lesbians and leads to other adverse effects:
Section-292 of IPC punishes
Obscenity;
the current definition of obscenity can lead it to incriminate the
gay and lesbian writings. As male homosexuality is a criminal
offence, the presumption is that it is something depraved and can
corrupt the minds and bodies of the persons. In the prevailing
atmosphere any writing about the lesbians and the gay men can be
criminalized, as homosexuality is treated as something immoral or
depraved. The workman's Compensation Act, 1923- provides that in
case of death caused by injury at the work place, the dependents
of the employee are entitled to receive the compensation from the
employer, the dependents will include a widow, minor legitimate
son, unmarried daughter, widowed mother and an infirm son or
daughter.
Thus a gay or a lesbian couple cannot claim the benefits under
this section. This is not an isolated example and there are other
such Acts that are discriminatory towards homosexuals. The
Provident Fund Scheme, 1952 and the Payment Of Gratuity Act, 1972
define family in such away that a lesbian or gay couple. I end
this issue with a quote ?There are several sections in the Indian
Penal Code which are anachronistic in a changed world. Section 377
is a prime example. As a matter of fact, Section 377 as it stands,
would have made what Clinton did to Monica Lewinsky or rather what
Monica Lewinsky provided to Clinton, an offence. I am being
discreet, because after all, some things can only be dealt with
orally and cannot be put down on paper! The crucial words are "against
the order of nature."
The possibilities are immense and the imagination can well run
riot. Perhaps the way out is now to argue that nature and its
various orders have themselves changed.
Why There Is Need For Legal Recognition:
A recent study of sexual practices in rural India by the United
Nations Population Fund (UNFPA) found that `male-to-male sex is
not uncommon. In fact a higher percentage of men in the study
reported having male-to-male sex than sex with sex workers. This
was true of both married as well as unmarried men. Close to 10 per
cent unmarried men and 3 per cent married men reported having had
sexual intercourse with other men in the past 12 months." The
survey covered 50 villages in five districts of five states with
feedback on sexual practices from close to 3,000 respondents and
in- depth interviews on intimate habits from 250 people. The data
is indicative of a reality the government is either unable or
unwilling to see.
Love is love. The real threat to marriage is the alarmingly high
divorce rate. Marriage is also a legal joining of two individuals.
People who are not religious choose to get married in a registry
office and not in church. Marriage shows the strongest commitment
you can make to one another. Gay men and lesbians are just as
human and have the same needs and desires as heterosexual human
beings. I fail to see what God has to do with this Marriage in
this instance is not religious, but a legal joining. Getting
married is the ultimate way of showing your love and commitment to
your partner, so why should gay people be deprived of this right.
Who are we to sit and judge anyway.
Same sex marriages should be legalized. If people find gay
relationships contrary to their religion, it is up to them to
refrain. Those who do not share their religious opinions should be
free to make their own choice on this as on other issues. Gay men
and lesbians are just as human and have the same needs and desires
as heterosexual human beings.
The argument that same sex marriages should not be made legal "because
they do not produce kids"
is ridiculous. Should heterosexual couples over 50 not be allowed
to marry as they cannot produce kids either? If two people love
each other and want to unite their destinies, then it is a
beautiful thing which should be celebrated. Whether it is called
"marriage" or "life pact" does not matter. Same-sex unions harm no
one; one's support or opposition to this is a matter of personal
belief and morality, with which the government has no business to
interfere.
The universality of Human rights demands that prevailing and
dominant cultural and social norms cannot be invoked in a manner
as to circumvent or restrain fundamental and constitutional
rights. If we were to accept the government's arguments in the
Delhi high court case, then many of the progressive legislations
in my country would never have been enacted. For example, even
today there are many men who think that tradition gives them a
right to beat up their wives, or that they deserve to get a very
fat dowry just because they were born with a penis. If we give in
to these cultural beliefs, then there is nothing to turn round the
legislations that we have made to stop violence against women or
dowry and dowry related deaths.
Conclusion
On the basis of the whole discussion on the aspect of same sex
marriage that is
Should it be legalized or not.
This is more of a religious debate then a political one. In which
I have given my arguments in favour of decriminalizing it, I
finally conclude by saying that homosexuality is not an offence,
it is just a way of pursuit of happiness, a way to achieve sexual
happiness or desire. I can see absolutely no reason, apart from
blind prejudice, which prevents two gay people going through a
civil ceremony which will give them the rights and securities
which heterosexual couples enjoy. Marriage is a sign of commitment
and love. If two men or two women want to show that commitment,
how does that destroy or damage the ideals of marriage. In my
view, it clearly demonstrates it. Aren't we living in an age which
respects the individual's right to choose
Isn't India supposed to be the land of the free
In our society people have branded homosexuals as
queer.
Yet homosexuality is not new nor is it against the Indian culture,
it has always existed and with much lesser prosecution, that under
Section-377 of the IPC, which is based on British Offences against
the Persons Act.
What should be the right approach to deal with same sex marriages,
the issues are quite vast and complex. However, the desirability
and feasibility of such an approach remain to be ascertained. In
any event there is a growing conviction that our present method of
criminalizing the same sex sexual activity neither helps the
homosexuals nor protects the society in general. We thus need to
legitimate same sex marriages in order to move forward in the
direction of human rights.
Books Referred:
1. Dr. Durga Das Basu, Introduction To The Constitution Of India,
Wdhwa Nagpur, 19th Edition, 2002.
2. V.N. Shukla, Constitution Of India, Eastern Book Company, 10th
Edition, 2004.
3. S. Kumar, All India Criminal Major Acts, National Law Agency,
Allahabad, 1st Edition, 1989.
4. Encyclopedia Of Criminology, Volume 2, 2003.
Website Visited:
www.bbc.com
www.outlookindia.com
www.indianexpress.com
www.google.com
Article Referred:
1. Sherry Joseph, The Law and Homosexuality in India.
2. Robert J. Buchanan, Homosexuality in History.
3. Speech was given by Aditya Bondyopadhyay, legal consultant /
Naz Foundation at the International Panel Discussion: Breaking the
"cultural" straitjacket: why sexual orientation and gender
identity are issues on the global south's agenda.
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author can be reached at: vidhan159@legalserviceindia.com /
