Indian culture has always tried to uphold its moral values and ethics in society. It has always tried to mould the society in its own set of principles and rules of conduct. In Hindu traditions, the act of homosexuality is considered as a manifestation of karma. It is not an act against god but a result of our misdeeds. In the Arthashastra, when two individuals of the same sex were engaged in a sexual act or intercourse they had to pay a fine and the fine amount was more if one of the parties to the intercourse did not consent to the act. The Manusmriti cited that a man who involved himself in an act of homosexual sex had to purify himself by bathing with clothes on or by fasting at night. In some cases, he had to drink specific cow milk and urine products. Again, in the Dharmashastras, written by Brahmins, they have mentioned about ayoni sex (non-vaginal sex).
The non-vaginal or ayoni sex was often interpreted to be anal or oral sex not only between a man and a woman but even between two consenting male or two consenting female. This clearly showed that the Dharmashastras acknowledged the existence of other forms of sex other than vaginal sex. So, when we look back at Indian history we see a lot of instances where homosexuality was recognized in the society even though it was not accepted. However, there is another view on this. The idea of homosexuality as a sin was inspired by the Britishers. This idea had a lot to do with their Christian Orthodox belief. Infact, the Indian society was always open to homosexuality and there is much evidence to support this view in ancient history and mythology. The famous Historian Rana Safvi said that "love was celebrated in India in every form". In both ancient and medieval India, society witnessed the existence of fluid sexuality. The depictions of homosexuality can be seen in the chronicles of Mughals and even in the temples of Khajuraho. The presence of homosexuality is often cited by the Mythologist Devdutt Patnaik. "The term homosexuality and the laws prohibiting 'unnatural' sex were imposed across the world through imperial might. Though they exerted a powerful influence on subsequent attitudes, they were neither universal nor timeless. They were - it must be kept in mind - products of minds that were deeply influenced by the 'sex is sin' stance of the Christian Bible," he writes in an article on his website.
When Britishers invaded India, they carried this idea of homosexuality to the subcontinent which was evident from the colonial law that criminalized sec 377 of the Indian Penal Code. As a result, for a very long time, even till date, the people of the LGBT community have to fight for their basic rights, which includes the right to marry people of the same sex. In December 1991 the ABVA (AIDS Bhedbhav Virodhi Andolan) documented the experience of gay people facing discrimination at the hands of the police and the shocking extent of violence and extortion that they faced. They wanted the judiciary to decriminalize sec 377 of IPC. The Naz Foundation on December 2001 filed a PIL in the High Court of Delhi where they asked the court to decriminalize homosexuality in India by removing sec 377. When the HC rejected the PIL a special leave petition was filed in the SC wherein the court struck down the 19th-century colonial law which consired sexual intercourse between two consenting adults of the same sex a criminal offense. Dipak Mishra, CJI even went on to describe the provision as “irrational, indefensible and manifestly arbitrary,” marking a triumphant end to a long struggle for justice.
The Navtej Singh Johar vs Union of India case is a landmark case on the rights of the people of the LGBTQI community. After the provision was decriminalised, the queer people were protected from social harassment and police atrocities and it further tried to remove the discrimination that they had been facing for a long period of time. The judgment was the beginning of the end of prejudice. However, it has been two years since the judgment now and still couples of the same-sex are not permitted to marry each other even if law allows them to be in a physical relationship with their same-sex partners. In recent years there has been a rise in the petitions filed by same-sex couples in the court for refusing to recognize and validate their marriage and thus violating their constitutional right of marrying a person of one’s choice. Two couples filed a petition in the Delhi HC and one in the Kerela HC for legalizing same-sex marriage. The Delhi High Court has promoted their requests to the public authority and the hearing on the two issues will occur in January 2021. Besides, Maneka Guruswamy and Arundhati Katju, the two lawyers who fought for the rights of the LGBTQI community and the main personalities in the sec 377 case had initiated the marriage project with the objective of legalizing same-sex marriage in India. This project has both a legal and social aspect to it.
In India, with the Navtej Johar judgment, there has been some amount of progress in the way society views people from the queer community. India has a ten crore strong and growing community of homosexuals evolving in every stage of life. Their strength is increasing day by day as more and more people are coming out of their closets and accepting themselves. They are paving their way into society and creating a life of their own. The community has received some legal recognition in the country now that homosexuality is legalized and socially accepted by lot of people. Most parents are coming out in support of their gay children and have finally been able to accept them the way they are. After homosexuality was decriminalized, Katju and Guruswamy met many parents of homosexual children who openly spoke about how grateful they were for the court’s verdict on the sec 377 case. They spoke on how they embraced their children and their partners into their family. In another instance, a lesbian couple from Bihar was happily welcomed by the groom’s parents with Mithai boxes to celebrate their wedding. Not only the family but even the neighbours joined in the celebration, filming the couple and blessing them for a successful married life
It is clearly visible how people have now begun to accept same-sex couples and have come in support of their rights. There is definitely a shift in people’s moral attitudes towards gay rights. People, especially the younger generation, are more liberal to such social norms. Also, sec 5 of the Hindu Marriage Act of 1955 which is the provision for marriage between two individuals does not talk anywhere about marriage between a biological man and woman. The only requirement is that the two individuals who are tying the nuptial knot have to be Hindus. Same goes for the Special Marriage Act, Foreign Marriage Act and other such personal laws. These days, there are online dating apps exclusively made for gay couples to help them find their soul mate. In larger countries such as Pune, Delhi, Mumbai, Hyderabad, many resources have been set up to help the lesbians, transgender communities and gays. This includes helplines, publications/newsletters, health-resources and social space and even drop-ins. All these shows how society has accepted the needs and demands of homosexuals and how the homosexuals have slowly and gradually been successful to merge with society. It is to note that same sex marriage is still a grappling issue in India. There may be certain difficulties from the legal perspective that may arise while enforcing the law in same-sex marriage. Confusion may arise in situations where the provision specifically mentions the term husband or wife. Suppose, one of the spouses in a same-sex marriage dies an unnatural death in relation to dowry violence and an FIR is lodged against the other spouse.
Here, the problem is that the IPC only considers a husband or his relatives to be responsible for dowry death. In such a case, how the provision should be interpreted is a question. Therefore this issue is left with the parliament to debate. In short, the landmark judgment of sec 377 has helped society accept homosexuality in a way that is beneficial not only to the community but also to the society as well. Indians are becoming more and moral liberal and with a rapid shift in moral and cultural values, homosexuality is no longer considered as moral taboos. Indian society is a work in progress. They are still learning about the queer community and there is still more to learn. But the society has definitely made progress when it comes to the mentality of people in terms of homosexuals-gays, lesbians and trans. When people accept homosexuality they also accept the union between them, as every couple in love tends to take their relationship to a stage where they can legally recognize their relationship in society. And this is possible only through marriage. Today, 28 countries all around the globe have legalized same-sex marriage and many western democracies also accept the civil union between same-sex couples.
By Ms. Aitreyee Doley, Legal Intern at S.Bhambri & Associates (Advocates), Delhi.