Same-Sex Marriage in India

Same-Sex Marriage in India

By Guest Blogger Sitara Sankar

Written in Support of Queer Sense. Promote production of the Queer Sense book today!

377 Cross OutClinging to a Draconian Law

Whether it’s about recognizing same-sex relationships, or legalizing same-sex marriage, all discussions pertaining to LGBT rights in India are primarily centered on Section 377 of its Constitution.

The world’s largest democracy (by population), and the bastion of ‘unity in diversity’, is yet to quash a redundant colonial law that criminalizes homosexual behavior. Section 377 is a British Colonial Law that was framed by Lord Macaulay in 1860. The biggest irony is that the erstwhile colonizers had gotten rid of the Draconian Law way back in 1982! Today, same-sex marriages are legal across UK (with the exception of Northern Ireland), while India’s LGBT community lives under the constant threat of persecution.

The Exact Legal Clause

As per Section 377, anybody who has voluntary sexual intercourse that is against the ‘order of nature’, with any man, woman or animal, is liable to face imprisonment, which could range from a 10-year sentence to life imprisonment. Not only does this clause imply that all homosexual acts are illegal, but also criminalizes practices like heterosexual fellatio, anal sex and so on.

Championing the Cause of Same-Sex Relationships

The main contention here is that amongst the fundamental rights recognized by the Indian constitution, the right to equality clearly states the prohibition of discrimination on any grounds, and equality of all citizens before law. The right to freedom and right to life, lay further emphasis on the right of all Indian citizens to live with dignity. The advocates of India TransgenderLGBT Rights in India that include eminent public personalities, activists and NGOs, have been basing their rationale on these very grounds. In fact, there is sufficient historical evidence to prove that homosexuality was prevalent, as well as recognized in India up till the 18th century.

It’s also noteworthy to mention that India happens to be one of the few countries of the world that accords legal recognition, voting rights and a host of welfare schemes for its transgender citizens, natively known as the ‘Hijira Community’. In this context, it’s a deeply unfortunate mix of religious bigotry, homophobia, and social ignorance, that homosexuality is a ‘taboo subject’ and same-sex relationships are still considered as illegal here.

A Landmark Judgment followed by a Step Backwards

For many closeted gays in India, the 2nd of July, 2009 ushered in a new ray of hope when the Delhi High Court declared Section 377 as unconstitutional, and in direct violation to Article 21 of the Constitution that bestows all citizens with the India Gay Rights2rights of dignity, equality and liberty, which also encompasses sexual orientation. The judgment was in response to a lawsuit filed in 2001 by the Naz Foundation, an NGO working in the realm of HIV control and sexual health. With the decriminalization of homosexuality on this momentous day, there were Gay Pride Parades organized in several cities, accompanied by jubilant discussions about legalizing same-sex marriages as the next step. But all these aspirations came crushing down with the Supreme Court of India reversing this very verdict, on the 12th of December, 2013. The court backed its judgment stating that the matter was not under the purview of the judiciary, and should be decided upon by the Indian Parliament.

Several Regressive Steps that followed

The verdict has proved to be a big blow to the LGBT community in India, and many gays who mustered up the courage to come out of the closet after the 2009 iconic verdict, are now faced with a looming threat of legal persecution, as well as social discrimination and harassment. This has also had a detrimental effect on Public Health Initiatives to promote safe-sex practices and limit the spread of HIV and other STDs.

India’s former Health Minister, Anbumani Ramadoss who backed Gay Rights and supported the abolishment of Section 377, went on to face the wrath of his own Home Ministry. The most recent blow to same-sex couples came in March this year, when India voted against the rights of recognition of gay partners of UN officials. In what is considered as a highly regressive step, India took a stand with Russia, UAE, Pakistan, Saudi Arabia and China, to oppose legal entitlements of the same-sex spouses of UN staffers. Nevertheless, this anti-gay resolution failed to pass.

A Reality Check

Nobel Amartya Sen copy

Nobel Laureate Amartya Sen

Despite the widely prevalent homophobic attitude, a number of people from all walks of society have come out in support of the LGBT community. From best-selling author Vikram Seth, Nobel Laureate Amartya Sen, renowned activists Anjali Gopalan and Harish Iyer, to eminent politicians like Anbumani Ramadoss, Oscar Fernandez and several Bollywood Personalities like Aamir Khan and Amitabh Bachchan, there have been emphatic statements from leading public personalities to do away with redundant laws, and bestow gays with the right to live with dignity.

Braving all odds

The threat of social discrimination and harassment notwithstanding, there are media report on several same-sex couples who have tied the knot in traditional ceremonies across different parts of the country. Owing to the conservative Indian mindset, it is often a herculean task to gain parental approval first.

Gay India Prince copy

Crown Prince Manvendra Singh Gohil

Many parents unfortunately disown their children when they come to learn of their queerness. The fear of social ostracization and legal prosecution come much later. Manvendra Singh Gohil, the crown prince of the erstwhile princely state of Rajpipla in India himself had to face the wrath of his parents when he decided to come out of the closet in 2006. Not only did his parents try to disinherit him, he was also at the receiving end of intense criticism from traditional society with its self-appointed custodians of morality. As of today, he’s the founding chairperson of Lakshya Trust that is dedicated to HIV Control and Education, and also plans to adopt a child.

What Lies Next

A sizeable number of gays continue to lead so-called ‘normal lives’ and keep their sexual orientation under the wraps. Owing to this, it’s very difficult to deduce even the approximate percentage of gays in India, which could range anywhere between 2 to 13 percent of the population. There’ve also been several reports of couples who decide to move out of India, and settle in countries where same-sex marriages are legal. As of today, all hopes are pinned on the Indian Parliament to repeal Section 377, once and for all.

QUEER SENSE is authored by Bryce B. Summers, Ph.D. who is a psychologist and author. Please help change attitudes to acceptance whether it is domestic, or abroad, by contributing to a crowd funding campaign. Help make this book happen!

Queer Sense is a theory that fosters awareness on how culture shapes attitude development through social models, emotional connections to social models, aka attachment, and use of language with one’s models.

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