• Aryaman Kapoor

Struck down but not destroyed:The problem that remains even after the repeal of section 377

Updated: Dec 15, 2020

Homosexuality has been around for as long as humans have and even though the ancient scriptures mention the existence of homosexuality, all the major religions disapprove of the same. The first codified law that criminalizes homosexuality can be traced back to 1075 BCE under The Code of the Assura which states, “If a man have intercourse with his brother-in-arms, they shall turn him into a eunuch.” And since then the homosexuals have been ostracized from the community and their sexuality has been pathologized. Coming to India, the law that criminalized consensual sodomy was section 377 of The Indian Penal Code. The rationale of criminalization has always been doubted. Nevertheless, the fact that the IPC is one of the least amended laws in the post-independent India stands as a testimony of 'understanding' and 'visionary outlook' of the drafters of the Indian 'social setting', ethos and values that need to be preserved through criminal law[1]. The anti-sodomy laws stemmed from the Victorian uneasiness about homosocial behaviours which were traditional in many local cultures[2] and this law may have suited the Victorian morality but had no place in the twenty-first century where there is wide recognition and acceptance of the LGBTQIA+ community, and the same is expected to be reflected in the laws of the state. Finally, in 2018, the part of Section 377 that criminalised consensual sexual conduct between adults of the same sex was held unconstitutional and was repealed[3]. Even after the repeal of the law and essentially the legalisation of homosexuality, there still remains a stigma and fear in the Indian society against the LGBTQIA+ community mainly because of the belief that acceptance of homosexuality is the acceptance of a perverse mindset and this is turn has affected the integration of homosexuals in the society. This article aims to explore one of the issues faced by the LGBTQIA+ which is, same-sex marriage.

The most logical next step of integrating gays and normalising homosexuality would be allowing people of the same sex to get married. However, the indications that government has given clearly shows its opposition to allowing same sex marriage. Recently, the solicitor-general of India was quoted saying that same-sex marriage is against “Indian values.”[4]. And when it was argued in the Delhi High Court that the lack of formal acceptance of the gay union under Indian laws was a violation of their constitutional rights, one of the counsels for the centre, said that this is a peculiar circumstance and has not been faced in 5,000 years of Sanatan Dharma[5]. As it should be, the use of this age-old inhibition was criticized by the judges, but the response of the centre has highlighted its views on the rights of the LGBTQ+ community and It is for this rudimentary mindset of those in power, that members of the gay community are still treated as a second class of citizens. The main aim of the current government feels to be to establish a Hindu Majoritarian Nation[6]. And since all extremist Hindu leaders and scriptures do not approve of homosexuality, we can easily deduce that we will not see any voluntary moves by the government to increase the acceptance of homosexuals in society. Refuting the argument of the centre, Hindu scriptures define marriage as the union of ‘two souls’ and the same scriptures also define that a soul has no gender. It is only the human bodies that possess a gender. These scriptures are a major source of Hindu Law including the Hindu Marriages Act, 1955[7]. Also, both the Hindu Marriage Act, 1955[8] and the Special Marriage Act, 1954 do not require the two people being married to be Male and Female. The acts only mention gender in the context of minimum age. There is no law or provision in India which prohibits same-sex marriages, it is just the government which is against it. This stance of the government of adhering to such old scriptures and principles and depriving the citizens the right to get married to a partner of their preference, is strictly against the gist of right to life and personal liberty guaranteed by the Constitution under Article 21.

The only reasons there is a delay in allowing people of the same sex to get married is due to the ideology of the government and at present it seems to concur to the ideology of the majority of the nation. While talking about the removal of homophobia in India, We also need to be mindful of the fact that the whole country grew up being taught that homosexuality is unnatural and against the laws of the nature as well as the state. Hence, it would be excruciatingly difficult to change what essentially has been the upbringing of a person. Nonetheless, it is important to fix this issue so that the people who identify themselves as a part of this community are treated equally and accepted into the society. Homophobia may be something which will take decades to vanish, but it is important to keep working on it in order to make progress.

[1] K I Vibhute, Consensual Homosexuality and the Indian Penal Code: Some reflections on Interplay of law and morality, 51 J. Indian L. Inst., 3, 4 (2009). [2] Jeremy Seabrook, It's not natural, The Guardian, Jul. 3, 2004, [3] Navtej Singh Johar & Ors. v. Union of India, (2016) 7 SCC 485. [4] Ruth Vanita, Marriage equality is a constitutional right, do not deny it to same-sex couples, The Indian Express, Nov. 4, 2020, [5] Richa Banka, In 1st response to same-sex marriage, Centre cites 5,000 yrs of Sanatan Dharma, Hindustan Times, Oct. 14, 2020, [6] Milan Vaishnav, Modi Prioritized Hindu Majoritarianism Over Economy, Carnegie Endowment for national peace, Feb. 7, 2020, [7] Paras Sharma, The Unanswered Question of Same-Sex Marriages in India, The Jurist, Oct. 9, 2020, [8] The Hindu Marriage Act, 1955, § 5, No. 25, Acts of Parliament.

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