Legalising Homosexual Marriages : Rooting an Egalitarian Society

INTRODUCTION

In recent times, the global stage has been ablaze with fervent and frequent debates surrounding the crucial matter of granting legal recognition to homosexual couples. Within India, multiple Public Interest Litigations (PILs) have been passionately filed, each advocating for the rightful legal protections and securities of LGBTQIA+ individuals. These legal battles have cast a spotlight on the ongoing struggle between the progressive judicial wing and the conservative central government, igniting a tussle that resonates far beyond the courtroom.

Within the LGBTQIA+ community, the acronym itself expands to encompass a rich tapestry of identities: lesbian, gay, bisexual, transgender, queer, intersex, asexual, and the "+" symbolising its non-exhaustive character. These identities collectively represent a spectrum of gender and sexual orientations that often stand in stark contrast to the traditional confines of heteronormativity. Yet, amidst this ardour and contention, there exists a beacon of hope and progress in the heart of the Asian subcontinent. Nepal, a nation of roughly 30 million people, embarked on a pioneering journey by legalising same-sex marriages. In doing so, Nepal has set an unyielding example for both developed and developing nations alike, challenging them to prioritise the noble responsibility of fostering an egalitarian society over political gamesmanship.

The intention through this journal is to provide a panoramic examination of this complex issue. We shall consider the prominent themes and standpoints of the impassioned debate and delve into the nuances that underlie the essential recognition of the indisputable rights of the homosexual community. Furthermore, we shall cast a critical eye on the hurdles that demand urgent attention and earnest reform, recognizing their imperative role in fortifying the edifice of social equality.

TRACING THE HISTORICAL ROOTS OF SAME-SEX MARRIAGES

Homosexual marriages have traversed through several stages of recognition and these couples are still struggling to seek legal identification to minimise their vulnerability to social stigmas, in the 21st century era. Dated back to the 1970s, when the United States of America witnessed the first and major protest by the LGBT community (later announced as an international movement), there were certain talks about same sex unions as well. The latter, became a huge accentuated issue in the Supreme Court of Hawaii (1993), where a same sex couple was denied licence of marriage and subject to unequal treatment under the rule of law. Reinforcing this the USA enacted The Defense of Marriage Act(1996-2003), prohibiting such unions, followed by the State of Massachusetts, that denied marital licence in violation of the state constitution. However, on the sidelines, several other nations within USA were pioneering the step to ensure social security to gender minorities, through some popular statuses like - ‘Civil Unions’ by Vermont Court 1999, ‘Domestic Partnerships’ by California 2003, that conferred all rights as legal couples but without the tag of a “marriage”. Later on, during the presidential years of Barack Obama, the Supreme Court of the USA, overturned the decision of the Court of Appeals of the Sixth Circuit, in the case of Obergefell v/s Hodges (2015), therefore legalising same sex marriages in all 50 states. In South America six nations namely - Argentina, Chile, Brazil, Columbia, Uruguay and Ecuador (2019) legalised homesexual unions, although other nations still muddle in a conflict between Catholic Church, State and its people.

Nonetheless, The European nations topped the chart in this liberal move. While Denmark made the primary step to accept domestic partnerships of homsexual relationships, The Netherlands, became the paramount nation to legally recognise their rights in 2001. This noble trend was then followed by many other nations like Canada, Australia, Argentina, New Zealand, Iceland, Andorra and so on, that either made special legislations or were accepted by court rulings.

Embarking on the status in the Asian continent, Taiwan broke the glass in 2019 and joined the liberal club which was endeavoured through a court decision that further compelled the government to enact respective legislation, similar to the scenario in South Africa. However, embarking upon the scenario in Nepal, that has successfully benchmarked as the first south asian nation to legalise same sex marriage and endeavoured to ensure equal footing between the heterosexual and homosexual society. Dating back to 2007, Nepal judiciary made a landmark judgement in the case of Sunil Babu Pant v/s Government of Nepal (Sunil Pant was formerly the Asia’s first and nation’s only gay member of the parliament, 2008) that recognised the rights of sexually and genderly marginalised community, LGBTQIA+, while ensuring them with their right to privacy. In subsequent years, Nepal has also emerged with record-breaking titles such as first nation to hold a federal census on gender basis cognizant of third gender inclusion (2011), one of the few nations to allow transgender people to identify their gender on identification documents (2015) and ranked as the 10th nation to secure LGBT community with constitutional provisions (2019). In the recent achievement, Blue Diamond Gay society chaired by Pinky Gurung, made dedicated efforts to secure this in the last one decade. A major tactic to reach this breakthrough was the collaboration of LGBT activists with the women rights associations that finally led the supreme court to release the desired verdict. A single judge bench of Justice Til Prasad Shrestha issues interim orders to build a temporary registration system for registering same sex marriages until a specific legislation is enacted for the same. The nation surely sets a huge foundation stone for other nations to ensure an inclusive society that requires recognition of equal rights to citizens as humans.

Lastly, the scenario in Middle Asian nations such as Saudi Arabia, Iran that have restricted women liberty have legalised the most brutal penalisation such as flogging, capital punishment for any case of homsexuality. Therefore, we observe huge continental diversity in acceptance or rejection towards homosexual couples.

TRANSITION FROM HISTORICAL EMBRACE TO MODERN RESENTMENT

We are social animals subject to evolution in our lives, mutual existence and behaviour driven by the exigencies advancement of time and ideas moulded by social needs, education and affluence. Every society deals with social evils that hinder the existence of a civilised and stable society, however with the furtherance of time and headway to newer eras, we tend to collectively defeat the odds but gradually pave ways for fresh challenges that require reforms and solutions. As an extension to this premise, an example of such incongruity in the society shall be put forward. Sati, a social evil in ancient culture, demanded the sacrifice of widows by burning into pyres after their husbands’ death, however the educated reformists Raja Ram Mohan Roy ( Father of Indian Reforms ) fought tooth and nail to abolish this heinous practise.

In furtherance, let’s embark upon the status of homosexual engagements compared to ancient culture and contemporary controversies. As inferred from the ancient scriptures and textual interpretations across several religions, there seemed to be prevalence of same-sex marriage. Historical evidence from ancient India reveal certain pictographic illustrations such as from Ellora Caves in Maharashtra, Temples of Khajuraho in Madhya Pradesh, and Konark Temple in Odisha carved with images that openly depict sexuality, and eroticism both with men and women. Texts, scriptures, art and architecture of ancient times certainly reflect gender and sexual fluidity that has been seemingly dissolving in modern conservative society. For instance, as per Valmiki’s Ramayana, Lord Hanuman glimpsed Rakshasha women kissing one another in the premises of Lanka. One of the most prominent Islamic texts, Baburnama also held mentions to same-sex relationships, inferred through the poetries of several Sufi saints. Their works held rife with homoerotic references, such as the stories of Shah Hussain, who was believed to engage romantically with a Hindu boy, Madho Lal through poetic evidence, or the Armenian Merchant Sarmad Kashani falling for a Hindu boy Abhai Chand. These relationships did arise controversies but due to the religious conflicts but not on gender basis.

Hence, the modern contention of backing the illegitimacy of same-sex relationships as religiously unfeasible and non-accommodable shall be reconsidered. We can learn from the values of Buddhism (world's fourth largest religion) acknowledging marriage as a personal matter concerning two people’s individual decision and their liberty to engage with each other rather than a public course practised only on religious lines. It is undeniable that religion and culture define marital rituals, customs and conducts differing as per different religions; however, law opens avenues for all of its people to legally register their marital relationships irrespective of intra- or inter-religion, caste, faith tie-ups through a uniform procedure of court marriage registration.

HISTORICAL & LEGAL CONTEXT OF HOMOSEXUALITY IN INDIA

In the light of legal history to confer fundamental rights for homsexual community, there have been a handful of landmark judgements that have been successful in awarding the deserved justice.

Aforementioned history certifies a sense of acceptance in ancient times however, the invasion of English authorities transitioned the Indian society as per the beliefs of English society, herein, Britain as governed by the Church. The first Indian Penal Code drafted by Lord Thomas Macaulay, 1861, explicitly mentioned a category of ‘offences against human body’ that criminalised homosexuality under article 377 under - ‘Unnatural Offences’ extending to a maximum punishment of fourteen years with consent and life imprisonment without consent. This marked the penalisation of homosexuality for more than 150 years along with homophobic notions disseminated within the society.

Prior to the revolutionary judicial moves, it is essential to track down the constitutional essence which stands to bestow rights to every Indian citizen along with successive progressive interpretations to uphold its spirit. The “Magna Carta of India'' enshrined in chapter three from Article 12-35 (Fundamental Rights), ensures basic rights to every individual by the virtue of humanity. Firstly, Article 14 that states equality of law and equal protection before law implies that every being is equal in the eyes of law, thereby differentiation on any basis (herein - gender) stands invalid. thereby refraining LGBTQ+ people from accessing their rights, irrespective of any religious guideline breezing through the national winds, is a direct contradiction of this provision. In furtherance, Article 15 which explicitly states a ‘no discrimination policy’ on any grounds inclusive of race, religion, sex, place of birth or any analogous category. These characteristics within an individual are innate, unchangeable and non-influential by one’s will or power. Similarly. one’s gender and sexual orientation are inherent and developed under pubertal hormonal changes which can vary from the sex determined at birth (in case of third gender orientation). Hence, gender is a synonymous category to cite invalidation of legitimacy to avail discirmination. In addition, Article 19 and Article 21 confer freedom of speech and expression and the right to life, which implies an individual to freely express themselves in all manner with due decency and morality. Expressing one’s gender is concomitant to their liberal right of life, especially in a civilised society that tends to accommodate everybody with all their differences. In a society where downright criminals are acquitted by absence of little evidence, a law that prosecutes people over their gender differences leaves a negative outlook. Nonetheless, an imperative constitutional policy of judicial intervention has been fruitful in spearheading liberalism.

Mapping the judicial records, the pioneer case of Naz Foundation v/s Government of India in the Delhi High Court (2009) justified the nexus of aforementioned fundamental rights and protection of sexual minorities harassed under Section 377 which duly robs off their privacy and dignity. However, the court verdict defined ‘intercourse’ in a broader aspect than gender orientation, and also determined Section 377 as unlawful but did not decriminalise it. However, this verdict was challenged in the case of Suresh Koushal v/s Naz Foundation (2013) where the bench upheld it as a pre-constitutional legislation that cannot be determined as flawed under the realms of constitutional provisions.

Eventually, 2014 marked the real revolution through the verdict of National Legal Service Authority v/s Union of India, bestowing legal recognition to sexual minorities under a new category as ‘Third Gender’ along with recommendations to grant pejoratives as socially and educationally deprived minorities to extend participation and curtail stigmatised treatment in the mainstream. Subsequently, the case of Justice K.S. Puttaswamy and Anr v/s U.O.I in 2017 led to the expansion of Article 21 to include ‘right to privacy’. This reignited deliberations concerning gender and sexual minorities and lent certain important facets. The bench recognised sexual orientation, family building, procreation inclusive within the realms of one’s privacy. One has all rights to self-determination and autonomy that are provided through privacy as a constituent of their human dignity. Lastly, this landmark judgement marked the ‘Right to Marriage’ a part of privacy under Article 21 and set the stepping stone to validate the inclusion of sexual orientation as one’s private rights.

Nevertheless, the bench of Navtej Singh Johar v/s Union of India(2018) headed by Justice Dipak Mishra delivered the long awaited verdict legalising homosexuality and sexual intercourse between the same sex people protected under constitutional principles. It also brought numerous changes, imposed obligations and paved the introduction of a new legislation. The judgement enlightened a liberal ideology of homosexuality as a type of sexuality, and homosexuals as individuals with identical bodily features with indistinguishable access to rights and citizenship as an ordinary heterosexual. In furtherance, the Transgender Person (Protection of Rights) Act, 2019 was enacted that defined transgender, constituted punitory to deter all forms of discrimination and imposed obligations on the government for the welfare and upliftment of the gender and sexual class through proprietary measures.

THE CENTRAL DISCOURSE (INDIA)

“Equality is one of the magnificent corner-stone of Indian Democracy” - Thommen J., in Indira Sawhney v/s U.O.I.

India is the mother of all world democracies strongly built on the principles of equality, secularism, socialism, justice and fraternity.

In my view, same sex marriage shall be conferred legal acceptance through laws, by-laws, legislations, amendments in special laws, orders, regulations, directions or through court judgements.

Irrespective of the nation, gender and sexual minorities face myriads of perils in our homophobic society that tends to ostracise them from mainstream activities. This endangers them as socially indefensible to subjugation inflicted by the majoritarian sect and elevates the threat in absence of any legal guards. They are often dragged into trafficking, prostitution that heightens the risk of sexually transmitted diseases (STDs), expelled from habitation within mainstream residence, face non-acceptance, derogatory comments, physical abuse such as assaults, rape, that tolls on their psychological health, further weakening them to indulge in substance abuse, life-taking attempts or physical harm. This vicious and cruel treatment denies their fundamental human right to equally participate in educational and job opportunities, depriving them of social benefits like adequate food, shelter, and work. Hence, minorities are compelled to starve in poverty and continue to suffer brutal servility, defeating the principles of equality, civility, and socialism in a democratic world. Moreover, in workplaces minorities are denied rightful access to public services, assistance and redressal. For example, in 2013, NGOs working on LGBT issues in Argentina identified traffickers who promised transgender women job opportunities in Europe, but instead confiscated their passports and forced them into prostitution.

Aforementioned articles of the constitution constitute its basic structure as non-amendable provisions, thereby securing legal protection to all the citizens under its umbrella. Article 14 states equal rights and treatment to all of its citizens and Article 16 directs equality of opportunities of education, work,etc, irrespective of religion, race, place of birth, caste, gender, sex, creed, language, and any other factor that could be a ground for discrimination as vested or interpreted under Article 15. However, this provision is subject to reasonable classification on the basis of intelligible differentia, specifically for the communities which are vulnerable to the social discrimination such as women, marginalised caste, religions which benefit through special reservation provisions in almost all domains so as to encourage their upliftment. Similarly, in the current scenario, LGBTQIA+ community is impuissant due to social stigmas, stereotypical notions and marginal population. Article 14 is a bulwark against any arbitrary, or discriminatory action, and calls for equal consideration of homsexual couplesand shall be registered as married couples along with equivalent legal protection conferred to heterosexual couples, which is a denied reality, given the prejudicial mindset driven in our chauvinistic heteronormative society. Indian legal framework such as Special Marriage Act,1954 legitimises inter-caste, inter-faith, inter-religious marriages on the ground of equality, right to freedom, choice, privacy and love and since it includes referring to married partners as ‘spouse’ it is often seem amendable to extend bracket for inter-gender marriages as well. Therefore, there shall be a considerate view towards genderly discriminated minorities.

Evolution of ideas and beliefs from engagement of a couple for the sole purpose of procreation shall be viewed through a broader lens inclusive of sexual desires, emotional support as well as social and legal validation. Since couples are not legally secured they face enormous vulnerability in the social spaces like schools, workplaces, hospitals, etc., and further inconvenience being deprived of ‘spousal privileges’. For instance, if two gay people are in a romantic relationship and intend to sign as a ‘nominee’ for their bank accounts, or apply for ‘reduced tax’ as spousal privilege, they are denied such facilities due to absence of any such valid option. Property inheritance from their partner, estate planning, inheritance taxes are generally higher for unmarried couples. No spousal privileges especially in terms of retirement and social security deprives the transfer of pension to spouse after death of their partner and impacts financial security in old ages. Similarly, in case of medical emergency, non-heterosexual partner is restrained from signing up as a “spouse” for the patient since their relation is not legitimised, and the options offer heterosexual choices like husband or wife. Hence, there is a need for taking bold actions to establish gender neutral languages while replacing words like husbands, wives, maternal parental with spouse, partner, humankind, parental within legislations, as well as in ordinary course of action. The Supreme Court of India, recently launched a handbook of glossary titled, ‘Handbook on Combating Gender Stereotypes’ to replace gender unjust terms with more suitable alternatives. I highly acclaimed this initiative which aims towards a just and equitable society emanating with changes in legal roots directly impacting the society at large.

This debate is often condemned for its urban emergence and tagged as ‘urban elitism’ phenomenon, however as refuted by the CJI, considering the fact that higher couples are emerging from urban realms does not position it as citified. In furtherance, it is more likely that people from suburban and rustic boundaries are highly fearful of the social forces and backlash as a consequence of their gender revelation along with brutal charges. For instance, villages of North India have a quasi-judicial body called Khap Panchayat which functions to reinforce caste hierarchies and patriarchies. These institutions assert their role to dictate social justice on the lines of orthodox traditions and feudal hierarchy opposed to non-stratified and egalitarian society. We often see women and people from marginalised castes as the worst sufferers who undergo brutal and humiliating treatment, such as honour killings, naked parades, face blackening acts, family ostracisation or boycotts, in any case of violation. Under similar scenarios, it often casts huge social fear among people with non-heterosexual identities to reveal their sexual orientation and gender identity. I appreciate the role of Global Cinema in its move to expand the production of trangender-centric films like Kanchan, Laxmi, Dallas Buyers Club, Mala Mala, Shubh Mangal Zyada Savdhan, Boys Don’t Cry, Haddi which explore their lives and challenges as well drive sense of equality and empathy within our society, majorly the upcoming youth.

On the contrary, the government has presented a bold disapprobation towards same-sex marriages. backed on traditional lines reinforcing marriage as a religious sanctimony between biological men and women. I do agree with the veracity of this statement, however, with the evolution of society the sanctity of this sacramental marriage has already been broken. The traditional belonging of the concept of marriage includes the most important chapters of procreation and family building. However, same-sex marriages are denied on the grounds of gender differences, religion and non-compatibility and also lead to the distortion of a family structure. But, marriage itself is the root for family building, so conservative institutions shall not sceptically refrain homsexual couples from establishing one. Critics who seek to preserve marriage as a holy union and fear its sanctity to be broken by inclusion of homosexual couples shall acknowledge the inclusion of provisions like judicial separation and divorces through legal forces have already enacted legal rights of protection, independence and choice which actually break this union.

In furtherance, the decriminalisation of Section 377 (I.P.C.), not only liberated queer people to express their gender and sexual identity, but also let them engage in acts of sexual intimacy, and relationships without fear of forfeiture. So, if non-heterosexual couples have the freedom to romantic courtship, the people’s government and the public servants, in authority to work for the people, hold a responsibility to secure them an equal place and shall not be driven by ideologies of their group. It is imperative to fathom the ordeals slapped on them and draw immediate reformatory actions. Moreover, this cold stance of the government is violative of one’s right to marry, as well as disseminates a cynical message of denial of love. People marry to sustain their relationship and fulfil their dream of spending a life together. Even though there are possibilities of civil unions, as reiterated before, marriage shall confer legal rights and validation as well as place homosexual couples on an equal footing with heterosexual couples.

Subsequently, a couple should have the right to establish a family, procreate or resort to alternatives to get a child, given that two individuals are mature enough to make a decision to promise to spend life together and build a family. Adoption and surrogacy are prominent and widely followed alternatives to natural procreation and can be generally helpful for same sex couples. Even in heterosexual marriages, not all couples seek procreation, couples are united by their emotional intimacy as well as collective living, and many often resort to adoptions as well, thereby this same shall be granted to same-sex couples as their right to establish family, right to marry as their fundamental right. In fact, given that homosexual parents would likely resort to these measures, especially adoption, it shall aid in reducing orphan counts, population and increase adoption rate. This shall be beneficial for infants stranded in orphanages as well as build a family for the couples.

However there can be a major backdrop to the absence of a counter-partner. For instance lesbian mothers will not be able to fulfil the role of a father, and moreover in case of divorce the ultimate impact shall be served by the child and custody. However, is it really true that only children raised under homosexual couples are perilous to their upbringing? Millions of children in heteronormative marriages face mental and physical troubles due to judicial separation, divorce, and any ex-factor that traumatises and shreds up their family.

In a heteronormative society, non-binary individuals themselves face plenty of atrocious consequences only by the reason of their gender deviation from what is considered as normalcy. This impacts the treatment they receive in society and at work. Since they are socially unaccepted they are devoid of equal work opportunities, difference in wages and hiring biases and suffer economically that could limit their career advancement and earning potential. This eventually impacts their right to a healthy and dignified life.

The father of Indian Constitution- Dr. B.R.Ambedkar belonged to the Dalit community and was a victim of social atrocities, thereby he ensured a strict provision within the basic structure under the fundamental rights, Article 17 as ‘strict prohibition of untouchability’, since this malice took hundreds of thousands of lives over centuries and reinforced a stratified and hierarchical society. Moreover, SMA (1954) serves the rightful purpose to confer legal security to inter-caste couples as well, who otherwise might be prosecuted through institutions like Khap panchayat. On a similar lines, atrocities carried towards homosexual couples shall also be immediately dealt sternly. Failure to recognise them shall undermine an individual’s dignity, privacy and rights to self-fulfilment as well as our moral duties of shared understanding towards our mutual residents.

CONCLUSION

In conclusion, fostering a change in attitude towards the LGBTQ+ community necessitates a multifaceted approach that integrates human rights education, awareness campaigns, and legal reforms. The Yogyakarta Guidelines, serving as a comprehensive guidebook, can be instrumental in shaping international rights standards.

I would like to suggest certain reforms which need to be sincerely adopted within our legislation as well as our daily approach, to ensure the desired inclusivity.

• Amending the constitution to explicitly include the homosexual category within socially marginalised groups is a critical step towards upholding the principles of equality and justice. Article 17 should be amended to include prohibitory clauses against inhumane, homophobic, and discriminatory treatment.

• Establishing national regulatory bodies akin to NCSC/NCST will further ensure the protection and promotion of LGBTQ+ rights.

• Parents, guardians, laws, and social acceptance should collectively contribute to an environment where stigmas and homophobia are eliminated.

• Incorporating sex education into curricula is essential for dispelling myths and fostering understanding.

• Promoting humanitarian values that encourage sensitivity towards the emotions of all individuals is crucial in building a society that embraces diversity.

• The United Nations Free & Equal campaign serves as a global exemplar in advocating for equal rights and fair treatment for the LGBTQ+ spectrum, echoing the sentiments emphasised in the Puttaswamy judgement that equality demands the protection of every individual's sexual orientation on an even platform.

Marriage does not imply a rigid structural union solely for procreation, rather it implies a socially and legally recognised union between two people. The state and law further benefits them to hold all rights to access and receive spousal privilege within various domains of society such as pension, compensation, insurance, and equal status as a married partner in a heterosexual bond. In our society, given that India is secular, we have freedom to follow , profess and propagate any religion of our choice, but there are people who refer to themselves as atheists, who don't believe in any religion and have freedom to practise none. Similarly it is surely a fact that marriages are governed through religious procedures and rituals but not every marriage shall be strictly proceeded through religion. In India the state is not associated with any religion, and thereby not all shall be forced through religious lines. Even if same sex marriages are not religious, they can be legally protected since their major protest is to seek social and legal security.

The pillars of scientific temperament, empathy, equality, fairness, justice, and egalitarianism form the foundation of an inclusive society that recognises the needs of all its people. Laws are made to regulate the social order, maintain the rule of law and create deterrence, however, they are amended, repealed, or new legislations are enacted as per the evolution and contemporary demands of the society. The law cannot be a rigid set of rules but flexible to amend as per needs, similar to the fashion of amendments in the constitution that preserves its basic structure but changes provisions as per needs. We aim towards a progressive society rather than a regressive one.

In light of these considerations, supporting same-sex marriages becomes a logical extension of the pursuit of equality and justice. Such unions are a testament to the values of empathy, fairness, and the recognition of the rights of individuals regardless of their sexual orientation. By endorsing same-sex marriages, societies signal their commitment to building a more inclusive world, where love and commitment are celebrated without prejudice.

REFRENCES :

• M P Jain Indian Constitutional Law

• https://law.unimelb.edu.au/__data/assets/pdf_file/0010/3967444/Khan_Saif-Rasul.pdf

• https://feminisminindia.com/

• https://www.britannica.com/topic/same-sex-marriage/Same-sex-marriage-and-the-law

• https://indianexpress.com/article/world/nepals-supreme-court-orders-govt-to-register-same-sex-marriage-8690988/

• https://scroll.in/article/810007/from-bulleh-shah-and-shah-hussain-to-amir-khusro-same-sex-references-abound-in-islamic-sufi-poetry

( NOTE : This article does not intent to offend any group, section, or community of the society, and all views presented are entirely personal. )