Centre’s Views on Same-sex Marriage

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Recently, the Central Government opposed petitions for same-sex marriage (Homosexuality) and termed it against the Indian Cultural Ethos.

Key Points

• Background
  • The petitioners are demanding marriage rights for the gay community under the Hindu Marriage Act, 1955 and Special Marriage Act, 1954.
• Centre’s Response:
  • Same sex couple cannot claim fundamental right for their marriage — despite the Supreme Court decriminalising homosexuality in 2018 as marriage in India is a “bond between a biological man and a biological woman”.
  • The onus is on the legislature to decide and frame the proper legislation on the subject and can never be a subject matter of judicial adjudication.
  • The fundamental right under Article 21 is subject to the procedure established by law and it cannot be expanded to include the fundamental right for same sex marriage to be recognised under the laws which in fact mandate the contrary.
    • Article 21 of the Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable.

Support and Legal Journey of Homosexuality in India

• 2002: Naz Foundation filed public interest litigation (PIL) in Delhi High Court (HC).
• 2009: Delhi HC struck down part of Section 377 as being unconstitutional.
  • As per HC, it violated an individual’s fundamental rights to equality before the law, freedom from discrimination and to life and personal liberty under Articles 14, 15 and 21.
  • But non-consensual non-vaginal intercourse or intercourse with minors is still a crime (Rather Heinous Crime).
• 2013: SC upheld Section 377 as constitutional and overturned the decision of Delhi HC by reinterpreting it.
• 2014: SC dismissed review petition by Central Government, Naz Foundation and others.
• 2015: NCRB reported 778 cases and 587 arrests until Oct 2014.
  • Shashi Tharoor brought a private member bill for the decriminalisation of Art 377 but it was rejected by Parliament.
• 2016: Surrogacy Bill prohibited Homosexuals from having surrogate children.
• 2017: Supreme Court (SC) upheld that the right to individual privacy is an “intrinsic” and fundamental right under the constitution.
  • “Sexual orientation” was termed as an essential attribute of privacy.
• 2018: Navtej Singh Johar v. Union of India Case: SC struck down part of Section 377 stating that Choosing a Partner is every persons’ Fundamental Right.
  • The apex court upheld that other aspects of section 377 criminalising unnatural sex with minors and animals will remain in force
• 2019: Transgender Persons (Protection of Rights) Act, 2019: It recognised the third gender as other gender and provided them the following rights.
  • Non-discrimination against a Transgender Person in educational institutions, employment, healthcare services etc.
  • Recognition of identity of Transgender Persons and to confer upon them right to self-perceived gender identity.
  • Provision of the right of residence with parents and immediate family members.
  • Provision for the formulation of welfare schemes and programmes for education, social security and health of Transgender Persons.
  • Provision for National Council for Transgender Persons to advice, monitor and evaluate measures for the protection of their rights.

What is Homosexuality?

• Homosexuality is “emotional, romantic, and/or sexual interest” in people of the same sex.
• The group “Homosexuals” is one of the most deprived, tabooed and persecuted communities.
• World wide their movement for equal rights is gaining more support and is symbolised by Rainbow Flags and Pride March.

Homosexuality as a Socio-Ethical Conflict

• Religious Acceptance: There are diverging views depending on time and space in a different religion.
  • Ancient Greeco-Roman culture has shown tolerance towards Homosexuality while things changed after the emergence of Judeo-Christian as well as Muslim cultures.
  • Temple Sculpture at Khajuraho is a shining example of Indian tolerance towards Diversity.
  • Rigveda, Mahabharat (Character of Shikhandi), Arthashastra and Manusmriti, etc refer to homosexuality in ancient times.
    • Ancient Indian text Kamasutra written by V?tsy?yana dedicates a complete chapter on erotic homosexual behaviour.
• Procreation v/s Recreation: The critics of Homosexual relationship has term sex as a means of procreation for the continuance of Civilisation. Sex for recreational purpose is termed antithetical to the purpose of life and God.
  • The proponents of same-sex marriage point towards the promotion of family planning and highlight the fact that not all sex between opposite-gender couples is for progeny.
• Right to Freedom of Choice v/s Social Order: As per critics and recent government reply in Delhi High Court, Marriage in India is not just a union of two individuals but an institution between biological man and woman.
  • The argument is partially flawed as definitely Marriage is a social institution with an agreement of cohabitation and shared responsibilities but rarely any sociologist has emphasised Gender.
• Mental Illness v/s Natural Instinct: The traditional argument against homosexuality has been it is not natural and a result of psychological problems.
  • Experiments like Universe 25 by J B Calhoun are quoted to show that it is an induced phenomenon due to breaking social structure.
  • But in contrast, homosexuality has been observed in many animals including Mammals. Birds, Reptiles, Fishes, etc. Humans are also social animals.
• Gender as Social Construct v/s Biological Mandate: The very basis of discrimination is gender binary argued by Anti-Homosexual people.
  • But different instances have shown gender as more of a social construct rather than merely biological. It is evident from Scandinavian societies where differences between male and female are reducing.
  • Further gender-fluid behaviour of children approves the notion of gender as more of a social construct.
• Recognition to Couple but denial to Marriage: In 2017, the Health Ministry recognised the possibility of love and relationship between same-sex but now in 2021 in Delhi HC government is denying recognition to marriage.

Need to Decriminalise Homosexuality

• The third gender is one of the most oppressed and ignored communities and is often forced to resort to beggary in India.
• Following are the major problems faced by them:
  • Mental Health: The isolation faced by LGBTQ+ is very high. They are not accepted in regular society.
  • Substance Abuse: The prevalence of Drugs is high due to mental problems, exploitation and beggary.
  • Sexually Transmitted Diseases (STDs): Multiple studies have shown that LGBTQ+ have higher AIDS and other STDs incidences due to lack of awareness and reach of the support mechanism of government.
  • Harassment and Violence: As society denies them various rights and doesn’t allow them to integrate in the mainstream, there are conflicts.

Way Ahead

• Surveys by the Centre for the Study of Developing Societies (CSDS) and Azim Premji University show more acceptance of LGBTQ+ as the third gender in society.
  • But still, 6 out of 10 surveyed people consider Homosexuality as wrong.
• Apart from legal, they also need a socio-political backup for their real empowerment.
• As humans, it is our prime duty to be tolerant, rational and aware citizens and help the LGBTQ+ to climb up in the social hierarchy

Source: TH