Opinion | Same-Sex Marriage Verdict: History Could Have Been Reimagined, But It Was Not – News18

October 17, 2023, could have been the red-letter day on which history could have been scripted for the conjugal rights of the LGBTQIA+ community in India. But it was denied by the majority judgement 5-0 (and adoption rights 3-2) of the five-member constitution bench of the Supreme Court of India, headed by DY Chandrachud, the Chief Justice of India. The bench comprised Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli and PS Narasimha. The bench had reserved the verdict on May 11 this year, after a ten-day hearing.

A Split Nation

Very much like the judgement of the apex court, the intelligentsia of India too is split on the desirability or otherwise of the right of same-sex marriage. The verdict comes as a dampener for the activists and those from the LGBTQIA+ community who earnestly were awaiting a verdict in their favour as a culmination of their decades-long fight. Contrarily, the status quoists and some other activists were rooting for the Supreme Court’s verdict because according to them any other verdict would have distorted the social fabric of the country.

An Uncertain Government

The stand of the Union Government during the discourse on the matter in the apex court has been both uncertain and hostile. While it has not explicitly spoken against it, the Centre argued the matter should be debated in the parliament. The government’s stand was that though the union of same-sex people has been decriminalised in India now as Section 377 of the Indian Penal Code (IPC) has been struck down, this does not meet the Indian concept of marriage.

In a counter affidavit filed in the Supreme Court in response to a bunch of petitions seeking legalisation, the government said, “Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender. Living together as partners and having sexual relationship by same sex individuals [which is decriminalised now] is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man husband’.: biological woman as a ‘wife’ and the children born out of the union between the two who are reared by the biological man as father and the biological woman as mother.”

The government’s stand further was that any statutory recognition of marriage through various acts like the Hindu Marriage Act, 1955, the Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936 or the Special Marriage Act, 1954 or the Foreign Marriage Act, 1969, legitimises a marriage that is heterosexual in nature, and therefore, any other form of it is ‘unlawful’.

The government’s submission also was that at this stage of the nation, it was necessary to recognise that while there may be various other forms of marriages or unions or personal understandings of relationships between individuals in a society, the State limits the recognition to the heterosexual form. The State does not recognise these other forms of marriages or unions or personal understandings of relationships between individuals in a society but the same are not unlawful.

Finally, the government’s stand was that not recognising same-sex marriages did not violate any fundamental rights because while it was certainly true that all citizens have a right to association under Article 19, there was no concomitant right that such associations must necessarily be granted legal recognition by the State. Nor can the right to life and liberty under Article 21 be read to include within it any implicit approval of same-sex marriage.

The Petition

For giving verdict before the Bench were a bunch of petitions seeking the recognition of same-sex marriages under Indian law, based on the argument that the right to marry a person of one’s choice should be extended to LGBTQIA+ citizens of the country as well.

During the course of hearings, the stand of the petitioners was unequivocal that “India is a marriage-based culture” and LGBT (lesbian, gay, bisexual, and transgender) couples should be granted the same rights as any heterosexual couples, like the status of “spouse” in finance and insurance issues; medial, inheritance, and succession decisions, and even in adoption and surrogacy matters.

Asking for Basic Rights is not Asking for the Moon

Let me inject a personal note here. In various pieces on the News18 platform and elsewhere, I am on record stating how my sexuality was massacred by multiple sexual assaults during childhood, adolescence, and early adulthood, so much so that at one point, I had serious questions about the nature of my sexuality. It is just luck by chance that I turned heterosexual. Had destiny had its way and made me a homosexual by choice, today I would have wept at the bankruptcy of the Indian nation. I say so vociferously, without any intention to take an issue with the Honourable Supreme Court, because your Lordships, having spoken all the right words in the judgement while talking of the rights of LGBTQIA+, could have been a bit more magnanimous and could have accepted the truth as the truth.

This piece traces the history of the treatment of same-sex relationships and how society globally and in India has viewed same-sex relationships and same-sex marriages historically.

India’s Tryst with Destiny That Did Not Happen

October 17 was the date with the destiny of India to come even with the marginalised LGBTQIA+ community and grant them their fundamental right of equality before the law. The day was also for the nation to join the galaxy of 35 progressive nations (including the UK and the US) that have already legalised same-sex marriages. Before I move further, I take a peek at the nations that have already legalised same-sex marriage and in all such cases, sometimes it is the progressive governments that have delivered, while elsewhere, it is the vote of the people but in a large number of cases, it is the judiciary that has delivered decisively.

1. So far, 23 countries have legalised same-sex marriage nationally through the enactment of legislation in this regard. Among these progressive nations, Australia, Ireland, and Switzerland legalised same-sex marriage through legislation only after the nationwide referendum.
2. Today the subject matter of same-sex marriages in India is denied by the Supreme Court based on the wisdom of your Lordships. In this connection, it is worth noting that 10 countries of the world have legalised same-sex marriage nationally through court decisions — Austria, Brazil, Colombia, Costa Rica, Ecuador, Mexico, Slovenia (followed by national legislation), South Africa, Taiwan and the United States of America.
3. Two countries — South Africa and Taiwan — have enacted legislation legalising same-sex marriage after courts mandated them to do so.

Homosexuality and Indian Mythology

The Ganga is the most sacred river of India. As per Hindu mythology, the legendary king of the Ikshvaku dynasty, Bhagiratha, brought the sacred river Ganga to the Earth by performing penance. It is difficult to either prove or disprove the mythology but how Bhagiratha came into being is enshrined in the Indian psyche is an interesting anecdote on a lesbian union giving birth to a child. Here are two episodes, one from Ramayana and another from Mahabharata.

Ramayana

There are various forms of Ramayana and the story enshrined in one version tells the story of King Dilip of Ayodhya belonging to the Ikshvaku dynasty dying without an heir. Without an heir and the king dead, Ayodhya descended into chaos and in heaven, worried Brahma and Purandara consulted Lord Shiva who came in the dream of Dilip’s two widows and told them, “With my blessings, you will have a son.” The women were perplexed. “How” they asked, “without a man can we conceive?”

It transpires Lord Shiva’s answer was they would get a child if they made love to each other. Of the varied versions of Ramayana, at least one is supposed to have carried the narrative, as my information source is secondary, I cannot say precisely which. The queens did as desired and one of them got pregnant, giving birth to a child who went on to become the famous king Bhagiratha, best known for ‘having brought River Ganga from heaven to the Earth’ an act in which his predecessors had failed.

Mahabharata

The epic has the story of Shikhandi (also known as Shikhandini), the transgender warrior who becomes responsible for the defeat and the killing of Bhishma Pitamah. Pandava mounted an attack on Bhishma with Shikhandi leading the charge, followed closely by Arjuna, the most skilled fighter of the Pandavas. Refusing to engage Shikhandi in battle, Bhishma became vulnerable, which allowed Arjuna to take him down with a volley of arrows.

With Bhishma — the commander of the Kuru army — defeated, the Pandavas went on to win the war. Shikhandi, whose gender was never an issue societally speaking, became to be remembered as a significant character who played a major part in overcoming the Kauravas.

It is difficult to prove or disprove the truth behind the mythology, but the role played by transgender Shikhandi in the victory of truth in Mahabharata militates against today’s discrimination against the LGBT community. I do believe earnestly that true Hinduism means promoting love and respect based on equality of the soul, regardless of a person’s gender, race, or sexual orientation.

Same-Sex Relationships in Ancient India

I posit humbly that same-sex relationships, whether idolised or not, existed in ancient India side by side with heterosexual relationships. Here are a few proofs.

1. The ninth chapter of the Kamasutra of Vatsyayana, composed in around the 4th century BC, talks about oral sexual acts (Auparistaka), homosexuality and also of similar activities among transgenders (Tritiya Prakrit). It is but natural that such activities existed in ancient India, whether they had societal acceptance or not is difficult to decipher today. Nonetheless, it transpires from the reading of Kamsutra that, Kāma-sūtra, which was written to give knowledge about how to enjoy sex life, the existence of homosexuality in society is accepted but is not encouraged much.
2. There is a verse in Manusmriti that provides an injunction to perform atonement if one engages in sex with the same gender. For example, Manusmriti (11.174) says that if a man has sex with another man, then he should take a shower with clothes on. The statement implies that sex between two men is not considered normal, but it does happen in society and a very light punishment is prescribed.
3. As per Wikipedia, a number of Hindu texts have portrayed homosexual experience as natural and joyful, including the Kamasutra affirming and recognising same-sex relations. There are several Hindu temples which have carvings that depict both men and women engaging in homosexual acts. The Vedas too do not restrict homosexuality and there are numerous Hindu deities that are shown to be gender-fluid and falling into the LGBT spectrum. Same-sex relations and gender variance have been represented within Hinduism from the Vedic times through to the present day, in rituals, law books, religious or narrative mythologies, commentaries, paintings, and even sculptures.
4. During the Maurya empire, the Arthrashastra by Chanakya considered Ayoni or non-vaginal sex of all types as a punishable offence. Nonetheless, homosexual acts were treated as a smaller offence punishable by a fine, while unlawful heterosexual sex carried much harsher punishment.
5. Khajuraho temples built by the Chandella dynasty, which reached its apogee between 950 and 1050 AD, there exist vivid titillating images of women erotically embracing other women and men displaying their genitals to each other. The depictions in the Khajuraho temple were symbiotic with the existence and possibly even the acceptability of homosexuality in contemporary society.

Same-Sex Relationships in Medieval and Mughal India

With the arrival of the Sultanate and other Muslim rulers in India right up to the Mughals, a harsher view arrived against homosexuality, male or female. Islamic law generally forbade sodomy and had provisions of various punishments proscribed by different jurists. On the harshest end of the punishment spectrum was execution, including by stoning, or burning.

The dominant school of thought in the Mughal Empire, Hanafi, was however much more lenient and did not demand a death penalty. Punishments could be a fine or left up to the judge’s discretion.

Homosexuality was not only prevalent among the Mughal amirs and the upper echelons but as per Albruni, it was relatively rare among the common people of India. Possibly, the dalliance of Albruni was limited to the upper echelon of society.

A Recap of India through the Ages and Same-Sex Relationship

After carefully scrutinising all the literature on the subject and the depiction of visual evidence through the millenniums, I humbly posit that in Indian society, whether in the prehistoric era, the ancient Indian period or even the medieval era, particularly the Mughal period, homosexuality existed and society if not acquiescence or acceptance had tolerance of the existence of same-sex relationships, if not altogether universal acceptance of the same. Ever since my early memory, I have been witnessing extreme indulgence shown towards the transgenders in both rural and urban India, the dancing queens in society who arrived whenever there was an auspicious moment in a Hindu family, be it the birth of a child, marriage in the family or housewarming of a newly occupied home.

Then came the British and all went topsy-turvy.

British Intolerance of Same-Sex Relationship

The complete intolerance of same-sex relationships was alien to the Indian culture. Though a small minority, it existed side by side with heterosexual relationships. But it all changed with the arrival of the British and Anglo-Saxon jurisprudence to India.

It was the Buggery Act of 1533, passed by the UK Parliament during the reign of Henry VIII, that for the first-time targeted homosexuality for persecution in the UK. While completely outlawing sodomy in Britain – and by extension what would become the entire British Empire – convictions were punishable by death.

Homosexuality as a Major Crime

The law against same-sex relationships was first codified in the British Empire as Section 377 in the Indian Penal Code as “carnal intercourse against the order of nature” in 1860. Section 377 of the IPC is an act that indisputably criminalises homosexuality and reads as follows.

Unnatural offences – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation – Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Although Section 377 did not explicitly include the word homosexual, it has been used to prosecute homosexual activity with impunity. And though Section 377 was annulled by the Supreme Court of India in 2018, even today, the only thing the Darogas and Indian Police Force understand is Section 377 of the IPC.

Same-Sex Relationship as Mental Illness

As if proscribing same-sex relationship by law and making it a punishable offence was not enough, couples indulging in same-sex relationships in India and elsewhere were officially branded mad, suffering from serious mind malady, the mental disorder of the worst order. Here it goes.

One, in 1948, the World Health Organisation (WHO) in its 6^th edition of the International Classification of Diseases (ICD) first introduced homosexuality as a separate category of mental disorder specifically related to sexual functioning or sexual disorders. Come 1965, the ICD-8 enlarged the concept of homosexuality as a mental illness by including “lesbianism” and “sodomy” as diagnoses of mental illness and it also listed “transvestitism” as a mental disorder under “sexual deviation”. In 1975, ICD-9 further reclassified homosexuality as a mental disorder under categories related to sexual functioning or sexual disorders, and sexual deviations and disorders and also included “trans-sexualism”.

It was only in 1990 that ICD-10 removed homosexuality as a diagnosis and instead listed “sexual maturation disorder, ego-dystonic sexual orientation, and sexual relationship disorder” under “psychological and behavioural disorders” associated with sexual development and orientation. And the WHO would not end there. ICD-10 in 1990 included a series of diagnoses under “gender identity disorders” transsexualism, dual-role transvetism, gender identity disorder of childhood, other gender identity disorders, and gender identity disorder, unspecified.

Two, not to be outdone, the American Psychiatric Association (APA) in its first edition of the Diagnostic and Statistical Manual of Mental Illnesses (DSM-I) in 1952 listed homosexuality as a sociopathic personality disturbance. Come 1968 and DSM-II, homosexuality was classified as a paraphilia disorder. Also “transvestitism” was first introduced under “sexual deviations”. In 1973, for the first time, homosexuality was no longer classified as a mental health disorder in the DSM.

But the classification phobia persisted and returned from the back door in DSM-III in 1980 where “ego-dystonic homosexuality” appeared and addressed discomfort with one’s sexual orientation; “transvestitism” got changed to “transsexualism” and “gender identity disorder of childhood” under “psychosexual disorders”.

As per this definition, definitely in my childhood and adolescence, I would have got the tag of suffering from “gender identity disorder of childhood” rechristened “psychosexual disorder”.

The struggle of psychiatry to keep homosexuality in the category of those suffering from mental disorders continues. In DSM-IV (1994) and DSM-IV-TR (2000), these definitions were collapsed into one overarching diagnosis of “gender identity disorder” with different criteria for children versus adolescents and adults and moved under the parent category “sexual and gender identity disorders.”

And the game of the Chinese Checker goes on. In 2013, DSM-V reclassified sexual mental disorders as “gender dysphoria” with different criteria for children versus adolescents and adults and remains problematic as a pathologizing classification and in practice acts as a barrier to care.

Conversion Therapy

Like India’s police force knows only Section 377 of the IPC (most do not even know that it has been outlawed by the Supreme Court), when it comes to same-sex sexuality or relationships, the only thing that most, if not all, psychiatrists understand is the conversion therapy to cure persons with the deviancy of same-sex relationship. They do not even bother to look at the provisions of the salutary Mental Health Care Act, 2017 that have outlawed conversion therapy.

UK has changed with time, but India has not

For most same-sex couples in India, living either in hiding or in the open, it has been fighting of a lifetime, or I better say a fight ever since India got independence. IPC was framed by the British, and it reflected then prevailing paradigm in Britain. Britain has since moved on and changed with time. In 1954, the UK government appointed a committee to review the laws dealing with homosexual activity and prostitution, chaired by Sir John (later Lord) Wolfenden.

And Wolfenden Committee recommended in 1957 the decriminalisation of private homosexual activity between consenting adults over the age of 21, but with heavier penalties against homosexual activity in public places. British government decriminalised homosexuality. In 1967, the Sexual Offences Act was passed in the UK which decriminalised private homosexual acts between men aged over 21. In 1994, the Criminal Justice and Public Order Act lowered the age of consent for gay men from 21 to 18, and in 2001, it was further lowered to 16. In the UK, the prevailing paradigm is lesbianism is a much lesser issue.

Britain Makes Same-Sex Marriage Legal

In 2013, the United Kingdom took a giant leap when it decided that the government would enable same-sex couples to marry and enacted the Marriage (Same Sex Couples) Act that makes the marriage of same-sex couples lawful in England and Wales while protecting and promoting religious freedom.

By opening up marriage to all couples, the UK government believes that it demonstrates society’s respect for all individuals, regardless of their sexuality, making its society fairer and more inclusive for all its members. It also believes that change strengthens the vital institution of marriage and ensures that it remains an essential building block of modern society.

Britain’s Marriage (Same Sex Couples) Act 2013 was passed on 17 July 2013, and the first marriages of same-sex couples took place on 29 March, 2014. More importantly, the same-sex couples who got married abroad under foreign law, who were consequently treated as civil partners in England & Wales, too are now recognised as being married in England & Wales.

India Thy Time Was Yesterday

I humbly posit that India, that is Bharat, thy time was yesterday. It is not the population of same-sex couples in India that matters, though my informed guess is closer to 10 million, it is inclusiveness that has to be the key and India lost an important day yesterday with all due regards to your lordships.

I feel sad that Radhika Piramal, openly gay sister of my friend Aparna Piramal Raje, had to take the course of law in the UK and had to get married there to her wife Amanda with blessings and in the presence of family and friends. Radhika had courage, conviction, and family support. What about millions of such ordinary same-sex Indian couples? When will the nation change for them is the question I have.

The Judgement Revisited

Despite my highest regard for the apex court, I do believe that the judgement does not represent the ethos of changing India. Maybe my expectation was too high. I was looking at yesterday’s verdict as a culmination of the series of judgements that started with the landmark 2009 judgement of AP Shah, Chief Justice of Delhi High Court in the Naz Foundation Vs Govt of NCT of Delhi case. Even though the judgement was set aside by a two-judge bench of the Supreme Court in 2013, sooner the Supreme Court judgement of the five-judge bench struck down IPC Section 377 as it applies to same-sex relationships and laid a firm ground for further claims for equal citizenship rights, including the right to civil union, marriage, adoption and similar rights that flow from it.

I will repeat what Justice AP Shah said on the 2018 Supreme Court Judgement- “This is a very good judgment. Decriminalisation is only a gateway, and this is the first step. We have to cross the threshold, bring in anti-discrimination laws, re-imagine the institution of marriage. Unless we bring in further reforms, discrimination against the LGBTQ community won’t end.”

Yesterday’s judgement was 5-0 against same-sex marriage and 3-2 against adoption by same-sex couples. This is despite the fact that Your Lordships have made all the right noises in their judgement including the fact that homosexuality or queerness is neither an urban nor elite issue.

Time for the Executive and Parliament to Deliver

The entire five-member constitution bench agreed that same-sex couples have no right to marriage under current laws. The bench has instructed the Central government to set up a committee headed by the Cabinet Secretary to look into the rights and grievances of the LGBTQIA+. I hope the committee delivers and delivers on time. Also, it is time for the executive and the parliament to frame a law that matters

Else Judgement Revision Time

If the Government Committee fails to deliver on protecting the rights of same-sex couples, it will be time for the Supreme Court to revisit its own judgement and constitute another Constitution Bench, this time with eleven judges.

India is destined to become a developed nation by 2047. Let’s not wait till then for same-sex couples to get their legitimate rights. Same-sex relationship was always tolerated in India, it was criminalised by the British who have moved on with time.

India, that is Bharat, thy time starts now.

Akhileshwar Sahay is a Multidisciplinary Thought Leader with Action Bias and India-based international Impact Consultant. He works as President Advisory Services of Consulting Company BARSYL. Views expressed in the above piece are personal and solely those of the author. They do not necessarily reflect News18’s views.