An analyses of the multiple dimensions of Same-sex Relationships
It is the objective of this paper to postulate that when Section 377 was in the Indian Penal Code (IPC) for one and half centuries, and now when the Supreme Court (SC) wishes to engage in judicial activism, formulate and direct the center and states (if not legislate) on further steps to be undertaken on the subject of same-sex marriages; in both these scenarios, the Judiciary is completely disconnected with the Indian ethos and Indian social reality.
The 5-judge Constitutional Bench of Supreme Court after hearing about 21 same-sex marriage petitions delivered its verdict on 17 October 2023; a narrow 3-2 verdict ruling that marriage is not a fundamental right and the decision to legislate same-sex marriages falls in the domain of legislatures. The bench of Chief Justice of India DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha refused to tweak the provisions of the Special Marriage Act even as the apex court declared that LGBTQ couples have a right to cohabit without any threat of violence, coercion of interference. The bench also ruled in a 3:2 verdict against civil unions for non-heterosexual couples.
-No legal recognition to same-sex marriages
-No constitutional or fundamental right to civil unions
-Centre should constitute a `high-powered committee’ to examine concerns of same sex couples
-No right for queer couples to jointly adopt
The bench asked the Centre, states and Union Territories (UTs) to ensure that the queer community is not discriminated against, the Chief Justice of India (CJI), heading the constitution bench, said queer is a natural phenomenon known for ages and is neither urban nor elitist. The minority judgment of CJI Chandrachud and Justice Kaul favored the LGBTQ petitioners while agreeing with the majority opinion that validation of same-sex marriages is not a fundamental right.
The petitioners argued that same-sex couples should be granted the same rights as any heterosexual couples like the status of spouse in finance and insurance issues; medical, inheritance, and succession decisions, and even in adoption and surrogacy matters. During the hearings on same-sex marriages earlier this year, Solicitor General Tushar Mehta argued on behalf of the Central government that 160 laws would be impacted in the process of bringing `marriage equality’. The CJI’s opinion also says the Central Adoption Resource Authority (CARA) guidelines discriminate against atypical, unmarried couples to adopt children. Justice S Ravindra Bhat stated that ‘Right to cohabiting cannot lead to setting up of an institution..’, which was endorsed by the majority opinion of the judges.
Following the Supreme Court’s verdict on the same-sex marriage issue, 22 former judges wrote a letter of appreciation for the apex court’s decision on the matter. “The judgment is a blend of interpretation of statutory provisions, culture and morality. It is relevant in the context of Indian culture, ethos, and heritage,” stated the letter. It emphasized that the court’s role is to interpret constitutional and statutory provisions, and it should refrain from intruding into the legislative sphere, which is the exclusive domain of the competent legislature. Appreciating the refusal to recognize queers’ right to adoption the statement added, “Queers right to adoption has also not been recognized by the Apex Court and rightly so. Even existing statutory provisions also restrict the rights of a single person to adopt e.g. under section 57 of The Juvenile Justice (care and protection of children ) Act 2015, a single male is prohibited from adopting a female child. Similarly, section 11 of The Hindu Adoption and Maintenance Act, 1956 prescribes an age difference of 21 years, if a male is to adopt a female child or if a female is to adopt a male child.”
Supreme Court has triggered off yet another controversy by taking up the petitions of LGBTQ persons demanding same-sex marriages. The Chief Justice DY Chandrachud, is known for his leanings towards Cultural Marxism and Inter-sectionality studies, on which he has spoken from public platforms. It is not known if he is aware of the havoc being caused in the west, particularly in the USA with its ultra-wokism, this space was effectively captured by the extreme left masked as wokism. Several eminent scholars like Dr Rajiv Malhotra, Prof Vijaya Viswanathan and Asra Nomani who studied woke activism and the calamities it has wrought on US society, especially in schools, even with little children in primary schools, with its fancy jargon like `gender fluidity’ have cautioned Indians not to go the western way. Looking at the havoc the woke agenda has caused in the west, recently in June 2023, Russian lawmakers voted to ban legal or surgical sex changes and gender reassignment surgeries.
It’s a huge paradox that in a country of 1450 million people, comprising of an LGBTQ population of a miniscule < 1 million, the Supreme Court was determined to spend quality time in same-sex marriage hearings to the detriment of thousands of other cases which are either languishing without hearings or which haven’t even been admitted by the courts. The courts didn’t step in even in the matter of formulating the UCC /CCC (Uniform Civil Code /Common Civil Code), which happens to be a constitutional directive, perhaps because it wasn’t deemed to be `progressive’ enough. Even though as per law, SC doesn’t have the power to legislate, it sought to amend the Special Marriage Act to make it amenable for same-sex marriages. However better sense seems to have prevailed as even the SC Bar Council opposed the hearings on this matter.
LGBTQ- Same Sex Marriages – The Social, Cultural and Legal Questions
The judiciary continues to be at loggerheads with Indian society both when Section 377 had its place in the IPC- when the traditional Indian society didn’t discriminate against other `minority’ sexualities, and now after the repeal of Section 377, with its new fangled ideas of western wokism. The nation is once again divided in its opinions and cultural sensibilities on the question of Homosexual or same-sex marriages, a googly thrown at the unsuspecting nation by the Supreme Court of India. Majority of the people in the country were unaware of the implications of the SC hearings and rulings on this contentious issue. It is advisable to go into the background of the issue.
The Legal Rigmarole of Section 377
(Section 377 in The Indian Penal Code
- Unnatural offences.—Whoever voluntarily has carnal inter-course against the order of nature with any man, woman or animal, shall be punished with 1[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. Explanation—Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section).
The LGBTQ community was grappling in the courts for about two decades to get the Victorian colonial Christian law against homosexuality, Section 377 of the IPC (Indian Penal Code) repealed, which has been there in the statute books since 1861. The gay community has started coming out of the closet since the 1990s, especially in the entertainment and fashion world. As India was grappling with the AIDS spectre, HIV prevention programs started getting implemented with Gays and MSMs (Men having sex with men), the community has started to become more visible and advocacy programs voicing `community rights’ too began. An NGO, NAAZ Foundation went to court in early 2000s for repealing Section 377, that would lead to decriminalization of LGBTQ community and restoring equal rights and dignity to them. What followed was a long-drawn legal rigmarole, and a euphoric moment to the gay- rights activists when in 2009, Delhi High Court in the Naaz Foundation vs Government of NCT of Delhi had struck down Section 377 and ruled that the provision of criminalizing consensual sexual acts of adults in private, under Section 377 of the IPC was violative of Articles 21, 14 and 15 of the Constitution.
However even after the Delhi HC judgment, the Manmohan Singh led Congress Govt squandered the opportunity to rectify the British colonial Christian relic, and instead put on display a public spectacle, where the Home Ministry and Health Ministry hired expensive lawyers and fought against each other in the courts for many years. The Home Ministry maintained that the prevalent societal norms disapproved of homosexuality, that it cannot be morally condoned, and hence it must be treated as a criminal offence. The Health Ministry argued that as LGBTQ community is at a greater risk of acquiring and transmitting HIV infection; and Section 377 is counter-productive in the Health Dept’s efforts in supporting programs of HIV / AIDS prevention and treatment.
In an interesting twist to the LGBTQ Rights Movement, the very same Supreme Court in 2013, set aside the Delhi High Court order and upheld Section 377. The Supreme Court held that homosexuality or unnatural sex between two consenting adults under Section 377 of the Indian Penal Code will continue to be an offence. A Bench of Justices G.S. Singhvi and S.J. Mukhopadhaya set aside the Delhi High Court’s verdict decriminalising homosexuality and added that this provision did not suffer from any constitutional infirmity. It was only in September 2018 that a five-judge Bench struck down Section 377 of the IPC, to the extent that it criminalized same-sex relations between consenting adults, thus correcting it’s own 2013 judgment, and after 9 years of Delhi HC judgment which decriminalized Section 377. It can be justifiably argued that the Judiciary in the country spent decades in arriving at correct judgment.
The western Abrahamic View versus the Indian Traditional Socio-Cultural Context
The Legal Case
Coming to the crux of the issue, unlike the western Christian Abrahamic legal framework, which openly and criminally discriminates against homosexuals, and even today in the modern era, suffers from homophobia; traditionally India doesn’t have any such homophobic complex. The British laws including Section 377 of IPC dating back to 1861, about 160 years ago, are derived from western Christian laws. This Victorian-era law survived into the 21st century; 123 countries still have not decriminalized homosexuality and 57 countries actively criminalize same-sex relations. Homophobic laws continuing to thrive in hundreds of countries speak volumes of the stranglehold of abrahamic legal framework in the modern world.
Oscar Wilde’s case
The celebrated case of poet, playwright and novelist Oscar Wilde perfectly demonstrates the Christian law criminalizing gay-sex in Britain. Wilde, a homosexual, was put on trial for gross indecency in 1895 after the details of his affair with a British poet and aristocrat 16 years his junior, Lord Alfred Douglas, were made public. Homosexuality was a criminal offense at that time in England. Wilde, already married with two sons, kept his homosexuality a secret. But in 1891, Douglas’s father, the Marques of Queensberry, was outraged by the relationship and sought to expose Wilde. Against his friends’ counsel to flee to France, Wilde decided to sue the Marques for criminal libel, the case was tried at the Central Criminal Court, commonly known as Old Bailey. The trial went poorly for Oscar Wilde, when the issue of Wilde soliciting 12 other young men to commit sodomy came to light as well as the theme of his controversial 1890 novel The Picture of Dorian Gray. When Wilde’s lawyer withdrew the lawsuit a few days later, the authorities saw it as guilt, arrested and convicted him on charges of `indecency’, and he received punishment of two years of hard labor, the maximum sentence for indecency. He remained in jail till 1897 where his health suffered badly. Oscar Wilde spent the last three years of his life in exile in France, and died in 1900, at the age of 46. It is ofcourse a fact, that Britain having inflicted its Christian laws in its erstwhile colonies, quietly did away the anti-homosexual law in 1967.
The Indian view
The british colonial rule introduced and implemented many laws in India, which are completely alien to Indian ethos and cultural traditions. They have similarly criminalized homosexuals and put it in the criminal law, IPC in 1861. In complete contrast, the diverse Indian society had space for everyone, there was no `othering’ phenomenon, nor was there any discrimination or stigma attached to persons who were different from the mainstream society. It is a known fact that in northern parts of India, Transgender /Kinnar samaj/Hijras are welcomed to functions like marriages and are presented with gifts, as they are considered auspicious. While the traditional norms may not have openly welcomed and accepted the gays, equally pertinent is the fact that there is no evidence of any discrimination either. There are umpteen examples from multiple texts, where gays/homosexuals have been depicted as a part of the same narration.
In Texts, Arts and Popular Culture
The well-known examples which leap to the mind are from the great epic Mahabharata, to name just two- the characterization of Sikhandi (The princess of Kasi, Amba takes birth as Sikhandi to vanquish Bhishma in Kurukshetra), and that of Brihannala, (the Pandava prince Arjuna during his Agnyathavasa- being incognito in Virata parva in Mahabharata) etc. (Telugu people are very familiar with many of these epics as they are were well depicted in the pouranic/epic movies). It is also believed that Sabarimala Swami Ayyappa is a child of Bhagwan Shiva and Bhagwan MahaVishnu in his Mohini avatar/ form, and hence also called Harihara putra. All these narrations are depicted in literature, audio-visual art, art performances, in folklore and in popular lore; Indians over the aeons had no problem whatsoever with any such depiction and there was never any protest of any kind.
The ancient Indian text Vatsayana’s Kamasutra dedicates a chapter on homosexual behavior. The famous erotica sculpture of Khujaraho temple also depicts homosexuality. The Arthashastra, an ancient Indian treatise on statecraft, mentions a wide variety of sexual practices which, whether by a man or a woman, were sought to be punished with the lowest grade of fine. While homosexual intercourse was not given a societal approval, it was treated as a very minor offence, and several kinds of heterosexual intercourses were punished more severely
Kinnar Akhara Mahamandaleshwar
As the ethos of the Sanathana Dharma doesn’t have any fundamental differences, it makes amendments from time to time and assimilates people of different genders into its all-encompassing fold. Noted Transgender rights activist and actress Laxmi Narayan Tripathi became the Acharya Mahamandaleshwar of the Kinnar Akhara (Transgenders) at the Ujjain Simhastha Kumbh mela in 2016. The Akhara headquartered at Ujjain has declared ‘talwar’ (sword) as its trademark weapon, with members of the Kinnar Akhara wearing white robes and ekmukhi rudraskh mala. The akhara works on the issues of environment conservation, cow protection, prevention of female foeticide and child marriages.
The contrast between western and Indian understanding and ethos towards homosexuality is very clear, western view derives from Christianity and Indian understanding derives from the all-encompassing Hindutva. The prolonged contentious battle in the courts to repeal Section 377 could have been avoided if the High Court and Supreme Court had the basic cultural understanding of Hindu ethos. The 1861 british law of Section 377 could have been done away in a jiffy, thus decriminalizing homosexuality and Indians would not have had any objections to it.
Health Risks and Social Behaviors
When one looks at the issue objectively, one realizes that the homosexual behavior closely imitates the heterosexual behavior- of man and woman. In the Indian context, predominantly, whether lesbians or gays, among the two partners, one has an overtly female behavior including dressing, another has an overtly male behavior including dressing. In other words, the genders are still two and not multiple. There is a third gender in the Transgender / Hijra section of people, Govt of India added the column of Third Gender. Then how does the `gender fluidity’ argument, with purportedly 72 kinds of gender and trans-gender identities, as described by the western woke sections, fit into this? Western society is being pulled apart, and doubts are being sown in the minds of very young children on their basic gender identity question, whether the child is male or female; and whether the identity changes continuously due to extraneous reasons like environment, peer pressure and so on.
It is known that adolescents and young teenagers as they come under the influence of peers, often face huge health risks in sex-change and gender reassignment surgeries, sometimes with serious consequences. It has been reported that sometimes, adolescents are not sure about their sexual orientation and start to imitate the gender preferences of their peers and influencers, opt for sex-change without being well-informed, and use hormonal suppressants and puberty-blockers. As they come of age, they regret but cannot revert as the sex-change surgeries are irrevocable. The mental trauma that young people undergo is enormous, studies need to be conducted on these factors. The LGBTQ activists need to understand that young adolescents are a hugely vulnerable group, are highly impressionable and need several safeguards.
The Legal case
It was earlier reported that the CJI hearing the case thought that a mere tweaking of the `Special Marriage Act’ by introducing the word `persons’ instead of male and female would suffice, and it has also been reported that the Solicitor General had corrected him on this matter that the change in terminology doesn’t automatically change the male-female framework of the laws.
In the legal framework, only the man-woman paradigm is recognized in all laws in the country. Many progressive, gender-just laws that have been legislated over the years, such as sexual offenses, domestic violence, sexual harassment etc are clearly defined in male-female terms. Among the same-sex couples, who is the male and who is the female for the purpose of application of law? And in case of progeny, they would have to resort to an external surrogacy arrangement (as happened in a few celebrity cases in the country); additionally who is the male and who is the female parent in such a household? As pointed out earlier, if the same-sex couples, for all practical purposes, behave in a heterosexual manner, then why call it same-sex marriages?
There is also another curious dimension which raises some questions; many men, while being married to a female partner in a heterosexual marriage, as well as being fathers, also indulge in gay-sex with other male partners. Would it be considered as adulterous or bigamous behavior? Would any current laws be applicable if the wife thinks of it as deception and infidelity (which might occur if it’s a man-woman relationship)?
Adult Consensual Sexual Partnerships
Consenting adults living with their preferred partners, as in co-habitation or live-in relationships has already been accepted by the courts. In the present judgment too, it is reiterated that `LGBTQ couples have a right to cohabit without any threat of violence, coercion of interference’. Then where is the need for legalizing homosexual marriages? Now as before, LGBTQ couples have lived and thrived in the midst of our society without facing discrimination.
Intervening in the matter of India’s internal legislation, curiously, the U.S. State Department said `The United States encourages India to work towards offering equal legal protection to same-sex couples and was `closely monitoring follow-up steps’ from the Indian government after the country’s Supreme Court declined to legalize same-sex marriage’.
It is clear from the recent verdict of the Supreme Court that it is just the initial step and other steps are to follow. As mentioned before, the SC directed the center to undertake many steps. LGBTQ activists are optimistic that they would achieve their objectives. On an issue where there is little awareness, and no understanding or analyses of the socio-cultural, psychological-emotional issues that would arise, or the pressure that it would put on the psyche of young children, and the social ramifications that would come into effect by the unleashing of a sensationalist and voyeuristic media, the LGBTQ activists, many of whom are brilliant professionals, should rethink whether such far-reaching moves are really necessary? Additionally, the core issue is getting conflated with the `gender fluidity’ woke agenda. It is time to step back and ask ourselves whether the flexible and progressive Indian society which doesn’t suffer from homophobia, would it not be able to find its own natural rhythm to assimilate this decidedly contentious issue too.