Human sexuality is complicated. Accepting the distinction between desire,
behaviour, and individuality affirms the complex nature of sexuality. The fact
that these dimensions may not always be consistent in individuals suggests that
the issues are complicated. In medical science, terms like homosexuality,
heterosexuality, bisexuality, and trans-sexuality are used to refer to all
related issues, whereas current social usage advocates for lesbian, gay,
bisexual, and transgender (LGBT), which focuses on identities.
There are various
reasons associated with the stereotype and social stigma, and the failure to
distinguish desire, behaviour, and identity, estimating the prevalence of
homosexuality in India has been a difficult topic to dealt with.
Homosexuality in India:
In India, homosexuality has a long history. Homosexuality can be traced back to
the Rig-Veda period 1500 BC. The harems (young boys) used to be kept by Hindu
nobles and Muslim Nawabs as described in the 'Kamasutra.' However, with the
advent of Brahmanism and, later, British Colonialism, these experiences became
correlated with hatred.
As they fueled patriarchy's dominance, the Aryan invasion began to suppress
homosexuality. Homosexuals were punished, beaten, and tortured in a variety of
ways, both physical and mental. This eventually gave birth to homophobia, which
evolved over time. From there, homosexuality began to dwindle.
It has long been considered a taboo in India. Most personal laws define marriage
as a sacrament and the union of two souls between people of different sexes.
Same-sex relationships are viewed as morally wrong and in violation of tradition
and religious beliefs. Gay and lesbian marriages are considered unholy because
marriage is a personal matter governed by one's religious faith. People in India
commonly assume that it is a part of Western culture and that it is a negative
influence from other countries. However, it cannot be only considered as a
Western practice, because our ancient scriptures and literature reflect a
Legal Provision in India:
So far, no such progressive changes have occurred in India, and homosexuals
continue to be victims of various forms of violence supported by the state and
society. There is no explicit reference to homosexuality or haemophilia in any
of India's statute books. It is not possible to prosecute someone for being
homosexual or homophilic.
Homosexuals' emotional attachments, fantasies,
affectionate and erotic desires are not given adequate consideration. However,
the sexual act of sodomy is a crime. Section 377 of the Indian Penal Code (IPC)
of 18601 contains the major provisions for criminalising same-sex acts. This
I.P.C. provision is based on the centuries-old misconception that sodomy and
homosexuality are the same things.
Thus, it is an attempt to criminalise sodomy de jure, while it is an attempt to
criminalise and stigmatise homosexuality de facto. As a result, homosexuality is
traditionally regarded as an offence under the IPC.
Same-sex marriage in Indian perspective:
When it comes to human and civil rights, many developed countries have embraced
same-sex marriage. For a long time, third genders have faced gender
discrimination. They have fought tirelessly for legal recognition of their
rights. The legal protection of homosexual relationships on an equal footing
with heterosexual relationships has now become a necessity.
The right to marry
is regarded as a human right. However, there is no law or legislation that
legally enforces transgender people's rights. But the verdict by the Hon'ble
Supreme Court in the National Legal Services Authority v. Union of India &
Ors2 made the first attempt to legally recognise their gender and the
fundamental rights that all people have regardless of their gender.
Moreover, in the case of Navtej Singh Johar v. Union of India
3, the Hon'ble
Supreme Court of India decriminalised homosexuality in the country about two
years ago. Nonetheless, amidst this progressive decision, the Apex Court and the
Government failed to address certain issues related to homosexual relationships.
One such question deals with 'same-sex marriages
The verdict is a relief for India's LGBTQ community, which has long faced social
and state oppression as a result of the antiquated colonial section 377 of the
Indian Penal Code, which has forced them to live in shame. Many appreciable
things were said in this verdict, but to truly secure the rights of the LGBTQ
community, legal recognition of same-sex marriages should be one of the nexus.
Same-sex marriages are not allowed in India. No law perceive same-sex marriages.
Because the law regards members of the LGBTQ+ community as 'individuals' rather
than 'couples,' that is the reason why homosexual couples stifle their desire to
marry a partner of their choice. One of the primary reasons homosexuality has
not been acknowledged as 'normal' in India is the lack of a 'stamp of marriage.'
It is precisely how live-in relationships transition from 'anti-social
'social' when the partners marry. In India, marriage is a sacred institution.
Denying the LGBTQ+ community the right to marry based solely on sexual
orientation and gender. Same-sex marriage has been legalised in many countries
around the world.
The world is moving toward liberal LGBTQ+ rights, but the Indian government,
despite the 2018 verdict, does not appear to be in the state of mind to gain
freedom from the clutches of orthodoxy and social liberalism. In a reply to a
24PIL4 in 2020, the Union Government through Solicitor General quoted that "Our
(Indian) legal system, society, and values do not recognise same-sex marriages."
He further contended that:
The 2018 judgement merely decriminalises homosexuality or lesbianism, nothing
more nothing less.
In a recent plea5, in regards to same-sex marriage, in the Court, the Central
government had argued that same-sex marriages are not rooted in Indian social
systems and are therefore incompatible with Indian culture, rituals, values, and
so on. Using a limited binary understanding of a "biological male" and
"biological female,", and the Centre argued against incorporating western ideas
into the Constitution.
Denying a person the freedom and choice to marry the person of their choice is a
strict violation of fundamental rights and has serious constitutional
implications. The Supreme Court has held in the case of Shakti Vahini vs Union
that if the right to:
Express one's own choice is obstructed, it would
be extremely difficult to think of dignity in its sanctified completeness. When
two adults marry out of volition, they choose their path; they consummate their
relationship; they feel that it is their goal and they have the right to do so,
and it can unequivocally be stated that they have the right and any infringement
of the said right is a constitutional violation.
Though this judgment was delivered in the context of Khap panchayats and honour
killing, it highlights the constitutional right to free choice and the right to
marry as fundamental rights protected by Articles 19 and 21. In International
Convention, even Article 16 of Human Rights Charter6 also recognizes, 'right to
marry' as a universal right.
Opposing same-sex marriage: A Legal Discrimination
Section-377 discriminates against people gender and sexuality, which is
prohibited by Article-15 of the Constitution. Article 15 forbids discrimination
based on a variety of grounds, including gender. Article 15 establishes that
there is no standard behavioural pattern associated with gender by prohibiting
sex discrimination. Section-377's prohibition on non-procreative sexual acts
prescribes traditional sexual relations for men and women.
As a result, the
provision discriminates against homosexuals based on their sexual orientation.
The legal principle of establishing a public code of sexual morality has no
reasonable relationship to the classification established. Furthermore, the
section's very purpose is ambiguous, unreasonable, discriminatory, arbitrary,
and based on the stereotyped concept that sex is only for sexual reproduction.
Section-377 violates the personal guarantee of civil laws for gay men and
lesbians, as well as having other negative impacts: Section-292 of the IPC
punishes obscenity; the current definition of obscenity may incriminate gay and
lesbian texts. Because male homosexuality is a criminal penal offence, the
assumption is that it is something depraved that can corrupt people's minds and
Marriage is interpreted differently in different cultures. It is primarily an
institution that seeks to recognise an individual's personal connections, such
as family and sexual relationships. It is clear that homosexuals face
discrimination and hatred, as well as isolation from social structure.
Homosexuality is not a crime; it is simply a way of worldly desires, a way to
achieve sexual happiness or desire. Apart from narrow mindedness, there is no
reason why two gay people should not be married in a wedding ceremony that
grants them the same rights and security as heterosexual couples.
What is the best approach to dealing with same-sex marriages? The issues are
vast and complex. However, the acceptability and feasibility of such an approach
are still obscure. In any case, there is a wide belief that our current method
of criminalising same-sex sexual activity neither benefits homosexuals nor
protects society as a whole. In order to progress in the direction of human
rights, we must legitimise same-sex marriages.
- Section 377: Unnatural offences.-Whoever voluntarily has carnal
intercourse against the order of nature with any man, woman or animal, shall be
punished with 2 [imprisonment for life], or with imprisonment of either
description for a term which may extend to ten years, and shall also be liable
to fine. Indian Penal Code, 1860, Act No. 45 of 1860.
- National Legal Services Authority v. Union of India & Ors, (2014) 5 SCC
- Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
- Centre opposes plea seeking recognition of same-sex marriages, published
at The Hindu. Available at- https://www.thehindu.com/news/national/centre-opposes-plea-seeking-recognition-of-same-sex-marriages/article32603987.ece
- There Is Legitimate State Interest In Limiting Recognition Of Marriage
To Persons Of Opposite Sex Only', Centre Opposes Plea To Recognize Same-Sex
Marriage- Published at- Live Law; Available at: https://www.livelaw.in/top-stories/same-sex-marriage-delhi-high-court-centre-affidavit-fundamental-right-opposite-sex-section-377-170398
- Available at: https://www.un.org/en/about-us/universal-declaration-of-human-rights
Recognition of Equality Marriage
LGBTQ And their Independence
Same Sex Marriage: Need of the Era
Recognition of Homosexuality In India-Its Time
Same Sex Marriage: Is It The Time For Legal Recognition
Marital Rights Of Same Sex Couple: A Socio-Legal Issue In India
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