By Vartika Aggarwal, Vivekanada Institute of Professional Studies.
The term ‘homosexuality’ in the literal sense means, being sexually attracted to a person of the same sex as one’s own. Homosexuality entails, leading of life by an individual over which he/she has complete right as assigned to him/her by the Constitution of a nation, a right to lead life with dignity and respect. There are references of homosexuality in our ancient literature & scriptures which reflect that the concept was prevalent in our society in ancient times as well. However, India till date remains an over conservative and religion based nation and hence same sex or gay marriages are looked down upon in India.
The world is changing all over in legalising same sex marriages. Recently, the US Supreme Court defined the idea of marriage within the folds of love and commitment. “Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations,” wrote Justice Anthony Kennedy for the majority. While the US Supreme Court might have had the last word on same sex marriage in the US, here in India the debate is still rife.
Marriage as seen from a religious angle is that which is unacceptable by religion or faith, as same-gotra marriage or same-sex marriage, is considered a desecration and results in expatriation. Gay marriage/same sex marriage are thus presumed to be unholy as marriage is a sacrosanct institution and such relationships are considered as immoral & a social evil, manifesting the society.
Homosexuality has not been defined in any statute in India and a person cannot be prosecuted for being a homosexual, but the sexual act of sodomy is a criminal offence. In India homosexuals are treated as criminals both socially & legally. Last year on a petition filed by Naz Foundation, the Delhi High Court by its judgement, decriminalised homosexual acts between two consenting adults specified in Section 377 of the IPC. The Delhi High Court had ruled that Section 377 of the Indian Penal Code (IPC), which criminalizes sex between adult homosexual men, was unconstitutional. This was a landmark judgement by High Court and has been hailed by many intellectuals, NGOs and also the people who were referred to in the judgement. This judgement gave them legal acceptance and an optimism that in future they might get social acceptance too. The Central Government had informed the Delhi High Court that homosexuality cannot be legalised in India as Indian society is intolerant to the practice of homosexuality.
The apex court has put the ball in the government’s court, arguing that it is free to annul the law through legislation and overruled the decision of the Delhi High Court. The progressive interpretation of the Constitution by the Delhi High Court which impacted not only Section 377 but also had wide ranging ramifications for India’s equality, privacy and dignity jurisprudence, has been negated by the Supreme Court.
There has been a constant debate on pros and cons of same sex marriage and also whether the Indian society is ready to overlook the morality aspect of the person concerned.
The main points which were raised in favour of same sex marriages is that denying a certain group of people the option to marry to whoever they wish to is discriminatory and it creates a second class of citizens. As stated by Judge Ms. Sarah Zabelin in her ruling in Florida Circuit Court that ”such a ban serves only to hurt, to discriminate, to deprive same-sex couples and their families of equal dignity, to label and to deem them unworthy of participation in one of the fundamental institutions of our society.” Moreover, every religious institution has the right to decline marriage among homosexual couples, however they don’t have the right to make marriage laws for the society at large.
The institution of marriage as defined earlier is between a man and a woman. In Baker v. Nelson, the Court upheld it by stating that ”the institution of marriage as a union of man and woman, uniquely involving the procreation and rearing of children within a family, is as old as the book of Genesis.’ Thus, in India even now the concept of marriage is looked upon as a sacred union between a man and a woman with the intention of procreation. It is an old notion that a child requires the love of both a father and a mother and various studies have indicated that children without a mother are deprived of the emotional security that mothers provide.
The issue of same sex marriage is quite vast and complex. Homosexuality is not an offence, it is just a way of pursuit of happiness and a way to achieve sexual happiness or desire. However, the desirability of such an approach remains to be ascertained. Our present method of criminalizing the sexual activity of same sex neither helps the homosexuals nor does it protect the society in general.
As per my view, in furtherance of this article, it can be concluded that, although homosexuality constitutes a “minuscule fraction” of the country’s population they cannot be denied their right to lead a dignified life. India being a democratic country and providing its citizens the right to live their life any way they wish to and providing them with various different rights which can very well be concluded under Article 21 of the Constitution of India, homosexuals being part of the country’s population are also entitled to the same rights. According to me, marriage is a sign of commitment and love and if two men or two women are getting married then, it does not destroy the ideals of marriage. We are living in an age where people have the right to choose and this right very well includes the person’s right to marry of his/her own accord. The acceptance of same sex marriage still has a long way to go in our country and will take time.
- Bakers vs. Nelson, 191 N.W.2d 185 (1971)