IT is three years since homosexuality was decriminalised in India, but public morality around same-sex relationships continues to be a thorny issue.
In October, FMCG (fast-moving consumer goods) company Dabur India Ltd was forced to roll back an advertisement celebrating lesbian love during Karva Chauth, a festival where traditionally some Hindu women observe a day-long fast for the long life of their husbands.
The ad, created for the beauty product Fem, a bleach cream, showed two women fasting for each other on the occasion of Karva Chauth. The Fem logo was shown in rainbow colours with the hashtag “glow with pride”, implying a celebration of the LGBTQIA+ (Lesbian, Gay, Bisexual, Trans, Queer, Intersex, Asexual) movement.
The ad achieved the rare feat of irking people from both left-wing and right-wing politics. Hindutva supporters on the right waved the spectre of hurt sentiments and demanded that the ad be withdrawn, while people on the Left felt that the ad promoted patriarchy and racism.
Madhya Pradesh Home Minister Narottam Mishra of the Bharatiya Janata Party (BJP) was among those to warn the company of dire consequences if the ad was not removed. He threatened to sue the company because according to him, the ad hurt Hindu sentiments and if not checked “in future, they will show two men taking fera s” (a Hindu ritual of marriage where the couple walk around a holy fire). Dabur India succumbed to the pressure and not only withdrew the ad but also apologised “unconditionally for unintentionally hurting people’s sentiments”.
Until 2018, homosexuality was considered a crime in India. In September that year, when the Supreme Court ruled that Section 377 of the Indian Penal Code was unconstitutional, it was hoped that the reading down of the archaic law would lead to the grant of certain freedoms to people on the LGBTQIA+ spectrum. While the change in law paved the way for same-sex couples to lead a more dignified private life than was possible before, the judgment stopped short of allowing same-sex couples to marry or be entitled to have rights that are available to heterosexual couples in India. This left open a window of doubt around homosexuality and allowed for incidents such as the one with Dabur to recur in the public sphere. The defining boundaries of queer rights remained vague and dependent on the prevalent value system of the day.
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Now, the Delhi High Court has an opportunity to rectify the situation and end the debate once and for all. The final hearing on a batch of petitions arguing for the legalisation of same-sex marriages has been fixed for November 30 by a bench of Chief Justice D.N. Patel and Justice Jyoti Singh. The bench has granted time to the parties to file replies and rejoinders in the matter.
The pleas under consideration have been filed by activists Abhijit Iyer Mitra, Gopi Shankar M., Giti Thadani and G. Oorvasi; Vaibhav Jain and Parag Mehta; Dr Kavita Arora; Mario D’penha; Joydeep Sengupta, a Canadian citizen and an OCI (overseas citizen of India) card holder, and his partner Russell Blaine Stephens, a citizen of the United States. Vaibhav Jain and Parag Mehta got married in 2017 at a court in Washington, D.C., and two years later formalised their wedding in front of families and friends through a Jain ceremony, sangeet and reception. In 2020, when Vaibhav Jain’s parents came down with COVID and he and Parag Mehta wanted to travel together to India, the Indian consulate in New York refused to register their marriage on the grounds of homosexuality. The couple then approached the Delhi High Court seeking recognition of their marriage under the Foreign Marriage Act of 1969.
Similarly, Joydeep and Russell got married in New York. In the absence of legal recognition of their marital status in India, they were not entitled to travel as a couple to the country during the pandemic, they said.
During the hearing of the plea, Joydeep and Russell’s Advocate, Karuna Nundy, reasoned that since Section 7A(1)(d) of the Citizenship Act, 1955, does not distinguish between heterosexual, same-sex or queer spouses, a person married to an overseas citizen of India, whose marriage is registered and subsisting for two years, should be declared eligible to apply as a spouse for an OCI card.
Plea seeking recognition of same-sex marriage
The petition filed by Abhijit Iyer Mitra, Gopi Shankar M., Giti Thadani and G. Oorvasi contended that despite the Supreme Court’s decriminalisation of homosexuality, same-sex marriages were still prohibited. They sought recognition and registration of same-sex marriages under the Hindu Marriage Act (HMA).
Abhijit Iyer Mitra is a vocal member of the LGBTQIA+ community, Gopi Shankar is a Tamil Nadu-based intersex activist who contested the 2016 Assembly election, Giti Thadani is the founder member of Sakhi Collective, and G. Oorvasi is a transgender activist. They argued that the language used in the Hindu Marriage Act is gender neutral and does not explicitly prohibit the marriages of same-sex couples. Nowhere in Section 5 of the Act is it mentioned that the two Hindus getting married must be a Hindu Man and a Hindu Woman, said the petition, adding that despite there being no statutory bar under the Hindu Marriage Act and the Special Marriage Act against gay marriage, the gay marriages are not registered anywhere in the country.
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The petition filed through Advocate Raghav Awasthi and Mukesh Sharma stated that it would be against the constitutional mandate of non-arbitrariness if the right of marriage was not extended to homosexuals. It would be tantamount to discrimination against one community.
A third plea was filed by Dr Kavita Arora, who wants to get married to her long-time partner Ankita Khanna under the Special Marriage Act. It is her case that the fundamental right to choose one’s own partner for marriage under Article 21 of the Constitution extends to same-sex couples as well. She challenged the provisions of the Special Marriage Act for not providing for same-sex marriages.
Represented by Senior Advocate Maneka Guruswamy, lawyers Arundhati Katju, Govind Manoharan and Surabhi Dhar, Dr Arora said in her plea that she and her partner had been living together as a couple for eight years, they were in love with each other and shared the highs and lows of life. But they were unable marry as they were a same-sex couple. Dr Arora sought a direction to be issued to the Marriage Officer, South East Delhi, to solemnise their marriage under the Special Marriage Act. Aged 47 years and 36 years, the couple said that not being allowed to get married had denied them several legal rights and protections in matters of owning a house, opening a bank account, succession, taxation, insurance, maintenance, pension, health and marital privileges.
The petitioners added that they did not seek the right to be left alone, but the right to be acknowledged as equals and to be embraced with dignity by the law. They said that the Navtej Johar judgment held that sexual orientation places a positive and negative obligation on the state, which includes non-discrimination under Article 15 of the Constitution. “The right to choose a marital partner is a positive obligation of the state to be fulfilled through its existing marriage laws. Excluding same-sex marriage from a legislation governing civil marriage outside personal law renders the SMA violative of constitutional guarantees of dignity, liberty, and equality.”
The BJP was in power in 2018 when homosexuality was decriminalised. Contrary to popular assumption, however, the Central government has steadily opposed legalising same-sex marriages in court. In February, the government submitted an affidavit to the court that categorically stated that there was a “legitimate state interest” in limiting recognition of marriage to persons of opposite sex only. The affidavit said judicial interference would cause “complete havoc with the delicate balance of personal laws” and added: “The acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws. The question as to whether such a relationship be permitted to be formalised by way of a legal recognition of marriage is essentially a question to be decided by the legislature and can never be a subject matter of judicial adjudication. The Hon’ble Constitutional court can analyse the existing rights but cannot create a new right by the process of judicial adjudication. The prayer made by the petitioner before this Hon’ble Court, is, therefore, wholly unsustainable, untenable and misplaced…. Considerations of social morality are relevant in considering the validity of legislation and it is for the legislature to judge and enforce such social morality and public acceptance based on Indian ethos. In our country, despite statutory recognition of the relationship of marriage between a biological man and a biological woman, marriage necessarily depends upon age-old customs, rituals, practices, cultural ethos and societal values.”
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In October, Solicitor General Tushar Mehta appeared before the court and said that spouse meant husband and wife and marriage was permissible between a biological man and a biological woman only. He clarified that there was a misconception with regard to the case of Navtej Singh Johar vs Union of India that decriminalised consensual homosexual acts between adults. He said: “The issue here is whether marriage is permissible between homosexual couples. Your Lordships have to decide that. There is some misconception of petitioners regarding the Navtej Singh Johar case. It merely decriminalises.... It does not talk about marriage.”
To this, senior advocate Saurabh Kirpal, representing one of the petitioners, said that while the Supreme Court judgment did not expressly allow same-sex marriage, the inevitable implication favoured recognising it and that this is how constitutional jurisprudence works. (Saurabh Kirpal, who is openly gay, was unanimously recommended for elevation as a judge by a collegium of the Delhi High Court in 2017. Yet, four years after the recommendation was made, his elevation is stagnant. Widespread homophobia is being cited as the reason for this inordinate delay.)
But attitudes seem to be changing. Recently, in September, Justice N. Anand Venkatesh of the Madras High Court made an unexpected and welcome statement while hearing a protection plea filed by a same-sex couple. He issued a number of guidelines banning the attempt to cure individuals of their sexual orientation and admitted that he was not fully “woke” to the concept of same-sex relationships. He said that he would undertake an education session with a psychologist in order to understand same-sex relationships better. These comments by a High Court judge were lauded by a large section of the progressive society.
Social attitudes towards homosexuality are an evolving phenomena in which legislative maturity and judicial intervention go hand in hand. The revocation of Section 377 led to an increase in acceptance of homosexuality in India by 22 points between 2014 and 2019, according to Pew Research Centre, but social attitudes towards same-sex relationships remained sharply drawn. Religious representatives continue to oppose same-sex marriages on grounds of constitutional right of religious freedom.
When Pope Francis was reported to have shown support to homosexuals by saying that “they are children of God and have a right to be in a family”, the Indian Christian community went out of its way to clarify these remarks. The Catholic Bishops Conference of India said that the pontificate was “misunderstood and misinterpreted” when he spoke about same-sex civil unions in the film Francesco , adding that there was no change in Church doctrine on same-sex marriages.
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According to Pew Research Centre, the global trend indicates that religiously unaffiliated adults are more likely than those who identify with a religion to say homosexuality should be accepted by society. But the pattern is not universal. For example, in Sweden, about equal shares among the religiously unaffiliated (96 per cent) and those who identify with a religion (93 per cent) say homosexuality should be accepted by society.
The landmark judgment of the United States Supreme Court granting same-sex couples a constitutional right to marry had a mixed reception. While some religious groups, including the Reform and Conservative Jewish movements, the United Church of Christ and the Presbyterian Church (USA), moved to allow same-sex couples to marry within their traditions, many Conservatives opposed the ruling stating it threatened their religious liberties.
Currently, the Thai Cabinet approved a draft Bill to sanction same-sex marriages. If passed, the law will become the first law of its kind in the South East Asian region.
India must take a leaf out of these countries’ experience to restore the personhood of members of the LGBTQIA+ community and make it another stepping stone towards universalisation of dignity to all minorities.