LGBTQ Pride Month: In the end, equality has to be served

The same-sex marriage issue in India has been a bone of contention between the government and the marginalised LGBTQ community, for quite some time now. Last month, in a path-breaking development, 18 couples from the community petitioned the Supreme Court of India asking for same-sex rights to marriage citing their status as equal citizens of a free country.

But this is more than just being a complex issue, as the petitioners, the government, the advocates of same-sex marriages and the world that has been watching this circus play out in court, have found out. The Supreme Court of India has of now reserved its judgement and nobody knows what the outcome will be.
Reports say that India is home to the world's largest LGBTQ+ community, according to the globally recognised Kinsey scale that estimates that it numbers around 135 million people — or 10% of India's population of 1.4 billion. With the burgeoning numbers, it can be expected that there would be considerable support for this community. But, alas, no!

At last month’s hearing before a Constitution Bench of the Indian Supreme Court, Senior Advocate Abhishek Manu Singhvi argued rightly that societal values cannot trump equal treatment. There were some more practical and hard-hitting facts brought to the SC’s notice that garnered wide praise and acclaim for the cause and yet its fate hangs in abeyance, marred by conventional dialogue from the establishment.
Despite homosexuality being decriminalised in the year 2018 in India, after years of horrifying and unfair methods of dealing with the community, five years later, we have not made much progress.

The world over, what is the state of the LGBTQ community? To answer this, we have to go a little back in time. The early 21st century witnessed more pronounced lobbying to recognise same-sex unions, especially in northern Europe leading to many countries in the European continent to give that recognition to same-sex unions. Denmark became the first country in 1989 to recognise same-sex unions (not marriages), permitting registered partnerships for same-sex couples.

Other countries like Norway in 1993, Sweden in 1995, Iceland in 1996 and Netherlands in 1998 enacted similar laws recognising civil unions and partnerships. The United Kingdom followed suit with the enactment of Civil Partnership Act, 2004 and Marriage (same-sex couples) Act 2013 recognising same-sex unions and marriages. Oddly, it was only a late as 2015 that the United States recognised/legalised same-sex marriages.

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However, conservative countries in Asia, Africa particularly the Islamic ones resisted legalising and recognising same-sex unions with harsh laws that prosecuted the LGBTQIA+. Most laws in these countries go back to the colonial era and need to be rehauled.

Stigma, threats and violence are common ways of targeting this community on the basis of their sexual orientation and gender identities. Strangely enough a country like Iran legally recognises transgenders, as long as they agree to undergo sex reassignment surgery!

Coming to the African nations, South Africa  is the only country to legalise same-sex marriages and its constitution prohibits discrimination based on a person’s sexual orientation. In Asia, Taiwan became the first country to legalise same-sex marriage in 2019. Israel also recognises same-sex marriages performed validly outside the country. Interestingly, the Supreme Court of Nepal in March 2023 directed the government to recognise a same-sex marriage performed in Germany with a further direction to legalise same-sex marriage in Nepal. 

First coined in the 1990s, the term LGBT is used to include anyone who is not heterosexual or cisgender (whose gender identity is the same as their sex at birth). Other variants to bring all under one umbrella of sexuality and gender, have been introduced. Among them are LGBT+ and LGBTQ+ (lesbian, gay, bisexual, transsexual/transgender, and queer)

According to figures available with Statista, worldwide, 68 countries criminalize homosexuality as of 2022. Most of them are located in the Middle East, Africa, and Asia. In 11 countries, the death penalty is imposed or at least a possibility for private, consensual same-sex sexual activity. These countries are Iran, Northern Nigeria, Saudi Arabia, Somalia, Yemen, Afghanistan, Brunei, Mauritania, Pakistan, Qatar and the United Arab Emirates.

Meanwhile in India, though homosexuality is no longer a crime, the battle to achieve equality with appealing for same sex marriages to be made legal, has just begun.

Going back to the annals of history, we can note that marriage is one of the oldest institutions, estimated to be around 4,350 years old and typically (and often incorrectly) assumed to be a union between parties of the opposite gender. While same sex unions are rare in history, it is not by any stretch of imagination a rarity or a modern day novelty as is often assumed. Nero, the Roman emperor who ruled from A.D 54 to 68, was purportedly married twice to men in formal wedding ceremonies. Closer home, there are enough references in the Rig Veda to suggest that same sex unions was tolerated, and who can ignore the temples at Khajuraho depicting sexual fluidity between the members of the same sex. 

This tolerance towards same sex unions changed with the invasion of the British in India and the imposition of Anglo-Saxon ideals, resulting in vilifying and criminalising homosexuality in India. Section 377 of the British colonial penal code which criminalised all sexual acts against the order of nature, was introduced in 1861 as Section 377 to the Indian Penal Code, 1860. For almost 157 years, i.e., from 1861 till 2018, homosexuality was considered to be a criminal offence in India, until the Supreme Court reversed it in a historic verdict in 2018. 

Despite the fact that almost 34 countries in the world now recognise/legitimise same-sex marriages, the Indian legislature has been dragging its feet in granting statutory recognition to same-sex marriages/unions.
In the recent same-sex marriage row in India, it was argued that many legislations related to the rights of a person that the recognition of a marriage confers, such as adoption, inheritance divorce etc., will have to be redefined to accommodate same-sex couples and consequently the claims sought should not be allowed without taking into consideration the other factors affecting the recognition of same-sex marriage.

The argument raised by the government is based on a settled principle of law that the judiciary should not impinge on the domain of the legislature, however, the reliefs claimed by the petitioners from the Supreme Court is not a relief to enact certain clauses in the statute but to strike down certain preconditions under the statute which are discriminatory and a judicial declaration of same-sex marriages under the Special Marriage Act. Both these reliefs can be granted by the Supreme Court and does not interfere in the domain of the legislature to legislate.

It is likely that the Indian Supreme Court will allow the reliefs or at least give a judicial recognition to same-sex marriages since it has already upheld the fundamental rights of LGBTQIA+ persons to equality, non-discrimination, freedom of expression, privacy, dignity, autonomy, and health under Articles 14, 15, 19 (1) and 21 of the Constitution in its landmark decision in National Legal Services Authority v. Union of India.

As of now, the arguments and counterarguments against the case put the onus for the decisions to be in favour of the LGBTQ community only if it is agreed that not the Supreme Court but the Parliament has to decide about legalising same-sex unions. Reason being, that it is a social issue that can be decided by society and thereby a change made to enacted laws in Parliament with majority voting and not decided as a conflict in court that has no authority to decide a societal issue.

As the buck is passed, it is all a matter of wait and watch for India and the world where the LGBTQ communities are growing from strength and strength and it is a truth that nobody can ignore.

Disclaimer: The views of the writer do not represent the views of WION or ZMCL. Nor does WION or ZMCL endorse the views of the writer.

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