Why in the News?
Recently, BJP MP Sushil Modi opined in the Rajya Sabha that same-sex marriages are unacceptable, adding that certain left-liberal elements are trying to change the ethos of the country. Mr Modi further stated that “In India, same-sex marriage is neither recognised nor accepted in any uncodified personal law like the Muslim Personal Law or any codified statutory laws.
Same-sex marriages would cause complete havoc with a delicate balance of personal laws in the country.” He further held that any attempt to legalise same-sex marriages warrants a debate in the Parliament and must not be made so at the direction of the court.
Mr Modi’s seemingly conservative opinion has once again reignited the discussion on homosexuality and the status of same-sex marriages in India.
The Supreme Court last gave the government time till 6 January 2023 to respond to two petitions seeking the legalisation of same-sex marriages in India. It was in reference to this that the MP, speaking during the Zero hour, had urged the government to take a strong stand against it in the court.
While Mr Modi’s views resonate with many in the highly conservative establishment, this particular topic has been highly polarising in the court of public opinion. According to a 2016 poll by the International Lesbian, Gay, Bisexual, Trans and Intersex Association, 35% of Indian people were in favour of legalising same-sex marriage, while 35% were opposed.
A September–October 2016 survey by the Varkey Foundation found that support for same-sex marriage was higher among 18 to 21-year-olds at 53%. While scholars, activists and members of the homosexual community argue for its legalisation, bureaucrats and politicians are against it; whereas the courts have been adopting a more cautious middle path.
The most prominent argument against the legalisation of same-sex marriages in India is its supposed incompatibility with the nation’s cultural ethos, something that Mr Modi stressed. The nay-sayers also label it as a foreign idea, a lifestyle choice unacceptable to the average Indian. The popularity of this reasoning aside, scholars have time and again emphasised the recognition of homo-sexual relations in ancient and medieval Indian life and literature. Historian Rana Safvi quips that “love was celebrated in India in every form.” Many instances from the Indian epics and literature have been cited to substantiate this claim. Some of these are as follows:
- The Ramayana, the holiest of all epics, mentions the peculiar birth of King Bhagiratha- which is a result of the physical relationship between the queens of King Dilip, on the advice of Lord Shiva.
- The temples of Khajuraho are full of erotic sculptures depicting homosexual relationships.
- Babur, the founder of the Mughal dynasty, writes unabashedly about his relationship with a boy named Baburi.
- The ninth chapter of Vatsayan’s Kamasutra, “Auparistaka” talks about oral sexual congress and homosexual acts.
Similarly, the Arthashastra and the Manusmriti mention homosexual relations. While ancient India did not necessarily condone it, homo-sexuality was very much prevalent and tolerated. Historians argue that this sudden “unnaturalisation” of homosexual behaviour is indeed foreign and alien to the Indian consciousness. It is a result of the imposition of Victorian morals and the Christian ideal of “sex is sin” on the Indian soul.
Status of Homosexuality in India:
Post-Independent India carried its colonial baggage with aplomb. Section 377 of the IPC which criminalised homosexual relations remained in the statute books, persecuting millions for exercising their right to choose, till being partially struck down by the Supreme Court in the famous Navtej Johar case.
While the decriminalisation of homosexual relations and legal recognition for same-sex cohabitation is a huge leap for the Indian state, the lived realities of the hundreds of homosexuals are still one of constant vigil, fear and uncertainty.
Same-sex marriages are still unrecognised. The presence of various personal laws and their express declaration of marriage as a heterogenous union of two individuals as husband and wife further complicates the issue. Even the wordings of the Special Marriage Act are pointedly heterogeneous at the face of it. On top of it, lack of sensitisation, accessibility to amenities, lingering misconceptions and taboos make life not easy.
The way ahead:
While hope persists, the road ahead does not seem ideal for homosexuality in India. The legislature lacks the intent to guarantee legal sanction to same-sex or even cis-transgender marriages in India. A private member bill proposed by Dr Tharoor in the Lok Sabha to legalise homosexual marital union was defeated on the house floor.
It is expected that the government will continue to vehemently oppose the legalisation of homosexual marriages in court. As for the Court, its liberal streak in recent times notwithstanding, it is expected to pass the envelope to the legislature. While official echo chambers would ring as such, grassroots struggles and societal reforms would continue to hold high the flag of homosexuality.
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