• Devangi Sharma

LGBTQ+ Relations in India: 2 years after 377

“Living together as partners and having sexual relationship by same-sex individuals is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two,” the Centre argued in the Delhi High Court.

This statement came in response to three petitions filed by couples in same-sex relationships seeking legal recognition for their marriages, arguing that the lack of formal acceptance of their union under Indian laws was a violation of their constitutional rights, guaranteed to them by the Supreme Court judgment which decriminalised adult, consensual same-sex relations in 2018.


The Centre's Defence

In addition to the above claims, centre said the judgment of the Supreme Court was “neither intended to, nor did it in fact, legitimize the human conduct in question”.


In an affidavit filed in response to the petitions, the Central government added-

  • despite the decriminalisation of Section 377 of the Indian Penal Code (IPC), the petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country

  • registration of marriage of same-sex persons also results in violation of existing personal as well as codified law provisions — such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under the personal laws governing the individuals.

  • Any other interpretation except treating ‘husband’ as a biological man and ‘wife’ as a biological woman will make all statutory provisions unworkable.


Another point of contention raised by the government was the invalidity of the petitions, stating- “The acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws. The question as to whether such a relationship be permitted to be formalised by way of a legal recognition of marriage is essentially a question to be decided by the legislature and can never be a subject matter of judicial adjudication.”


This plays in to India’s fundamental division of power, the legislative being the only body possessing the ability to form and amend the laws, with the judiciary playing the role of the interpreter and executor of the laws. Since no present law actively guarantees same-sex marriage, the union government debunked the petition for the HC to legalize such marriages. However, the petition challenged the illegality of marriages on grounds of discrimination against the LGBTQ+ which is an offence.


Response to Centre's Statement

Lawyers of the petitioners stated-

  • the Act itself wiped out several recorded Hindu traditions that existed prior to codification. Moreover, the statement fails to account for the 60-odd genders recognised in Hindu historical texts.

  • The progeny argument is particularly ridiculous because it implies any marriage shorn of biological offspring is not a marriage.

  • Not only does the Hindu Marriage Act per se does not mention biological ‘sex’ or ‘gender’, Hindu religious texts are also rife with references to non-binary individuals and their conjugal rights.

After reviewing the trajectory of the case, the court allowed the Delhi government to be impleaded as a party to the case and posted the matter for further hearing on April 20th, 2021.


LGBTQ+ vs Govt of India

This debacle comes at a time when countries all around the world are implementing safeguards to protect the LGBTQ+ community. The claims form a major hurdle to the progress achieved in 2018 after decades of struggle. How has the status of the LGBTQ+ changed over the years? Here’s a brief glance into the community’s history:


1861:

Section 377 was introduced by British India, modelled on the Buggery Act of 1533. It defined ‘buggery’ as an unnatural sexual act against the will of God and man, thus, criminalising anal penetration, bestiality and homosexuality.

2001:

Naz Foundation filed a petition challenging the constitutionality of Section 377 in the Delhi High Court.

2003:

The Delhi High Court dismissed the Naz Foundation petition, saying the body had no standing in the matter. The Naz Foundation appealed the dismissal to the Supreme Court in 2006, which instructed the Delhi High Court to reconsider the case.

2009:

The Delhi High Court decriminalised homosexuality among consenting adults, holding it in violation of Article 14, 15 and 21 of the Constitution of India.

2012:

After HC’s judgment, various appeals were made to the Supreme Court, challenging the High Court’s authority to change a law. In December 2012, the Supreme Court overturned the HC’s decision, after finding it “legally unsustainable.”

The Supreme Court then recommended that the Parliament address the matter because only they had the power to amend the existing laws.

2015:

In 2015 Shashi Tharoor introduced a private member’s Bill to decriminalise homosexuality, the Lok Sabha voted against it.

2016:

Five petitions were filed claiming their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity, and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.”

2018:

A five-judge Constitutional bench of The Supreme Court decriminalises Section 377 in a unanimous verdict on sept 6th.


Conclusion

Although the ruling of the SC on the matter of article of 377 has not been challenged or reversed in the Delhi HC, the statements stagnate the progress at a mere decriminalization of homosexual relations. It prevents the country from advancing towards a change in marriage laws, and puts people of the community at inferior positions, backtracking the status of the LGBTQ+ in our society. What seemed as a step in the right direction in 2018 now feels as endgame, giving government the utmost leeway to dictate the legitimacy of our relationships.


~ Devangi Sharma Sources - The Hindu, Hindustan Times, DNA, The Print


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