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Is India Over-thinking About Same-Sex Marriage?

There was a time when policies such as ‘Sati’ and ‘Untouchability’ seemed legal and natural and there were authorities that fought for their “significance”. Today, we all can agree on how wrong those ideals were, can we not?

The first nation to legalize same-sex marriage or gay marriage was the Netherlands back in 2001. Following the same path, 29 other nations also legalized same-sex marriage. There are still a majority of nations left to do the good deed, India being amongst them. Recently, I came across a news that read, “Solicitor General Tushar Mehta on Monday opposed a petition in the Delhi High Court seeking to recognize the right of same-sex couples to get married, saying that Indian culture does not recognize such a concept.” Well, that was unexpected (at least by me). This article is merely a commentary that gives readers my views on the same-sex marriage issue in India. 

Same-Sex Marriage in India 

There is (and never was) anything out of the ordinary about same-sex marriages, they have been around in our society for centuries but due to some orthodox and dogged mentality, they fail to get the recognition. It is the 21st century and people (with authority) are still arguing over the “obvious” rights of the LGBTQ community. The thing that makes this situation even more frustrating is that there was a time when policies such as ‘Sati’ and ‘Untouchability’ seemed legal and natural and there were authorities that fought for their “significance”. Today, we all can agree on how wrong those ideals were, can we not? There are hundreds to thousands of similar examples that prove how wrong we are and have been in the past. For instance, it took so many years  for the Supreme Court of India to finally declare Section 377 of the Indian Penal Code unconstitutional. The act dates back to 1861 and the provision has been impacting the lives of gay people for an unreasonably long time. 

According to Section 377, Unnatural offenses – Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[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 offense described in this section.

The process to get the provision repealed was long and vigorous, it was a step that was accomplished through the efforts of thousands of protestors. Some of the prominent leaders involved included Akkai Padmashali, Amartya Sen, Vikram Seth, Anubumani Ramadoss, and many more who campaigned and fought for the rights of gay people. Even the United Nations stepped in by stating “India should decriminalize homosexuality as the step would help the fight against HIV/AIDS by allowing intervention programs, much like the successful ones in China and Brazil.”

Current Status of Same-Sex Marriage In India

Recently, a petition was filed by four LGBTQ community members in the Delhi High Court requesting to legalize same-sex marriage in India under the Hindu Marriage Act, 1955. However, the petition faced much opposition from the Centre stating that “this fell foul of several criminal and civil laws recognizing marriage only between a biological man and a woman”. Even the Solicitor General of India (hereinafter, SG) raised several questions. He asked, “that in a same-sex marriage, who will be the man, and who will be the woman to fasten this statutory condition?” He further raised a question, “In case of domestic violence in a same-sex marriage, who will be the woman for enforcement of her rights under the Protection of Women from Domestic Violence Act, 2005?” 

SG further added that this situation requires further debate in the Parliament and thus, the petition should not be accepted. While his arguments do seem “reasonable”, there is still no denying that his statements like “same-sex marriage is unlawful or against our societal norms and practices” are pointing in a completely different direction. His statements seem to implicitly imply that same-sex marriage is sort of a taboo under the Hindu creed. Pointing out such statements somehow negates their idea of having a debate over the same-sex marriage issue in the Parliament, there is no point in “fighting” when you have already decided on the winner.

Questions such as these for centuries have prohibited the LGBTQ community from enjoying their birthright. It shouldn’t matter who is acting like a man or a woman in a “same-sex relationship”, the only thing that matters here is their right to live peacefully and without unreasonable restriction. This society is quite able to make norms and rules according to their whims and fancies and change or amend them when they seem fit. This is what is wrong with this whole situation. The primary goal in this whole situation should be changing & improving previous laws by amending legislation(s) to fit the needs of the LGBTQ community. Simply because the present laws do not justify the present status of a community does not really imply that their status is unlawful. Laws are made for the primary purpose of maintaining peace and order in society and if any law is abridging with the security and liberty of any community in society then it is the duty of legislators to amend that law.

In conclusion, there is a need for amendments in the legislation(s) keeping in mind the rights and obligations of the LGBTQ community. We can not deny them their rights just because of the limitations set up by our current laws. 

Same-Sex Marriage Around the World

As of now, there are thirty nations and territories around the world that have accepted and acknowledged same-sex marriage (mostly in Europe and America). However, this acceptance did not come so easily. In the early 21st century, same-sex relations were seen as taboo and treated as somewhat of a “disease”.  This happened primarily in African, Islamic, and some Asian nations. 

On the contrary, some of the first nations that accepted same-sex relations were in Northern Europe. While in the United States, the status of the same-sex relationship was highly debated over and became a reason for many protests and riots. In 1993, a case in the Supreme Court of Hawaii, the plaintiffs “claimed that the state’s refusal to issue marriage licenses to same-sex couples abrogated those individuals’ rights to equal treatment under the law.” Soon after this case, the U.S. Congress enacted the Defense of Marriage Act (DOMA) that  announced that same-sex marriages would not be recognized for federal purposes. However, with each year passing, new amendments and changes were made by several different states that (slowly) started recognizing the rights of gay people. One of the biggest wins for the LGBTQ community (in the US) was when the United States President, Barack Obama supported same-sex marriage and later in his term, abolished the DOMA by declaring it unconstitutional. Another huge accomplishment was when the Court in Obergefell v. Hodges reversed both of the Sixth Circuit’s holdings, “thereby legalizing same-sex marriage in all 50 states”.

Here is the list of countries that have legalized same-sex marriage- 

Argentina2010
Australia2017
Belgium2003
Brazil2013
Canada2005
Columbia2016
Denmark2012
Finland2017
France2013
Germany2017
Iceland2010
Ireland2015
Luxembourg2015
Malta2017
Netherlands2001
New Zealand2013
Norway2009
Portugal2010
South Africa2006
Spain2005
Sweden2009
United States2015
Uruguay2013

Grounds For Not Legalizing Same-Sex Marriage In India

The primary ground for opposition is religion and Hindu beliefs about same-sex. According to the opposition, the Hindu laws, values, and society does not recognize same-sex marriage. Furthermore, the Centre argues that in order to legalize same-sex marriage, there is a need to make several changes and amendments in a lot of legislation(s) and thus, requires a debate in the Parliament. 

Future of Same-Sex Marriage 

Well! The good news is that yes, there is scope for the LGBTQ community in India. Although it is difficult to say or presume that anything drastic is going to take place in the coming few months or even years for that matter, however, there is definitely hope for change. I mean, history is example. 

Yes, there is no doubt that India is over-thinking about same-sex marriage. However, I am sure that India is soon going to take the requisite steps to ensure the rights of the LGBTQ community. For now, we just have to wait and see how things pan out.

Please feel free to leave your thoughts in the comment section down below.

Note

Please note that the author of this article is using American English and therefore, the spelling of certain terms may be different. For example, the word “realize” is not spelled with an “s” and instead with a “z”. 

Helpful Article: https://www.lawcareers.net/Explore/Features/09072019-How-to-write-a-cover-letter-CV-or-application-form

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