Skip to main content

'Enough evidence' in Indian tradition to support legal basis for same-sex marriage

By Iyce Malhotra, Joseph Mathai, Sandeep Chachra* 
The ongoing hearing in the Supreme Court on same-sex marriage provides space for much-needed conversations on issues that have hitherto remained “invisible” or engaged with patriarchal locker room humour. We must recognize that people with diverse sexualities and complex gender identities have faced discrimination, stigma and decades of oppression. Their issues have mainly remained buried in dominant social discourse, and many view them with deep insecurities.
Political structures, even when built on principles of representative democracy, tend to favour electoral majorities over principles of justice and equality and thus may not be overly concerned about issues of diverse minorities.
As the interpreter and arbiter of constitutional rights, our courts, especially the Supreme Court, are best placed to consider and pass judgment on the plea to ensure marriage equality by providing a legal basis for same-sex marriage.
The current case is a logical outcome of the 2018 Supreme Court ruling decriminalizing homosexuality in India. Though an invisible minority in India, millions of lesbian, gay, bisexual and transgender people, with other democratic and justice-loving people are following the proceedings of the court.
We hope that the conversations, even within the adversarial legal context, will draw attention to these issues and further the cause for freedom and choice, even in the assertion of gender and sexual orientation and identity.
Long before this case, it has been clear that in the long civilizational histories of this sub-continent, diverse sexual orientations and relationships have not been condemned, and sometimes celebrated too. One of the earliest references to alternate sexuality in Indian mythology is to ardhanarishvara, the hermaphrodite deity depicted as an amalgamation of Shiva and Parvati with male and female characteristics.
We celebrate the ardhanarishvara as an icon challenging the notion of gender binaries. Arjuna’s assumption of a eunuch identity, Brihannala, for an entire year in "The Mahabharata" is another instance of making visible the transgender person. The "Kama Sutra", the ancient Indian text on sexuality, eroticism and emotional fulfilment, describes various forms of sexual expression between the same sexes and also alludes to long-term unions between men.
“Same-Sex Love In India”, a seminal book by Ruth Vanita and Saleem Kidwai, presents expressions of same-sex love in writings of ancient, medieval and modern Indian history. The book presents a sober view of the past, underlining the need for more democratic societies in the present and the future. The authors state in the Preface:
“Even when love between men or between women was not trivialized, viewed as inferior to love between men and women, or ignored (and it often was treated in all these ways), even when it was romanticized and to some degree encouraged, society rarely provided institutions that allowed it to be chosen and lived out as primary, in refusal of marriage.”
As a society, it is time for us to recognize that the human rights of all kinds of minorities need to be protected by law because, tragically, left to society on its own, these issues may never be addressed and resolved. The law and the judicial system must be a beacon for the futures we want in our country and the world.
We also need to see issues of diverse sexualities and the need to promote the rights of minority sexualities as another task of the de-colonization project because, in Indian or South Asian cultures, there was more acceptance of these diversities. British Colonial Rule imposed their puritanical values through laws like Section 377 of the IPC, which the Supreme Court overturned in 2018.
Medical science and technologies are developing fast, and especially with advanced IVF techniques and the practice of surrogacy, parenthood options are open for all. However, there is a need to move beyond parenthood determined by biological essentialism and reproduction as only emerging from the union of “man” and “woman”.
Regardless of medical advances and their implications, maternal and paternal values are not constructs of biological gender. Transgender activist Noorie Saleem (see video above) is setting up a home for 300 orphaned children after their HIV-positive parents' death proves maternal and paternal feelings are not gender determined.  
 The task before the court is not a simple one. The legal status of same-sex marriage under the Special Marriage Act impacts many laws, including divorce, succession and adoption. However, the judges appear to move beyond the constraints of adversarial procedures. Instead, they are asking the Government what they intend to do to facilitate the rights of same-sex couples and ensure they are not ostracised.
These are good steps. And there is a great need for the Government to reciprocate to bring a just resolution to this issue because though at the level of principles, the concepts of justice, equality and free choice are clear, the “devil is in the details”. 
 There is a need to work out the “benefits” of marriage, the importance of the option to remain single, the acceptance of diversities, moving away from biological essentialism and how we can extend constitutional morality in spheres that the original document did not deal with. These are complicated matters, but humans are complex, social animals.
*With ActionAid Association


Anonymous said…
Homosexuality is Haram is Islam and Christianity so this decision would be against minority also Indian culture does not mean Hindu culture this is clear cut Hindutva ideology to allow lgbt because it is part of Indian culture.


'Attack on free expression': ABVP 'insults' Udaipur professor for FB post

Counterview Desk   People’s Union for Civil Liberties (PUCL), Rajasthan, condemning what it called "insult of Professor Himanshu Pandya" by students affiliated with with the Akhil Bharatiya Vidyarti Parishad (ABVP) in Udaipur, has said he was evicted from the class where he was teaching after raising "ugly slogans", forcing him to "leave the university".

A Hindu alternative to Valentine's Day? 'Shiv-Parvati was first love marriage in Universe'

By Rajiv Shah*   The other day, I was searching on Google a quote on Maha Shivratri which I wanted to send to someone, a confirmed Shiv Bhakt, quite close to me -- with an underlying message to act positively instead of being negative. On top of the search, I chanced upon an article in, imagine!, a Nashik Corporation site which offered me something very unusual. 

Moving towards sustainable development? Social, environmental implications of HCES data

By Dr Vandana Sehgal, Dr Amandeep Kaur*  Sustainable development, the high time agenda, encompasses economic, social, and environmental dimensions, aiming for a balance between all these aspects to ensure long-term well-being and prosperity for all. One of the crucial aspects of sustainable development is consumption patterns. Consumption patterns refer to the way individuals, households, and societies use resources and goods. Sustainable consumption patterns entail using resources efficiently, minimizing waste, and considering the environmental and social impacts of consumption choices.

Will numerically strong opposition in Lok Sabha strengthen democracy?

By Prem Singh*  After the first phase of the 18th Lok Sabha elections, which were conducted in seven phases, it was already indicated that a large part of the country's population had decided to contest the elections against the present government. A large number of unemployed youth and the already agitating farmers played a major role in this act of protest. 

Heatwave in Bundelkhand: 'Inadequate attention' on impact on birds, animals

By Bharat Dogra, Reena Yadav*  While the heat wave and its many-sided adverse impacts have been widely discussed in recent times, one important aspect of heat waves has not received adequate attention and this relates to the impact on birds and animals.

How Congress leaders' 'arrogance', BSP's politicking helped BJP alliance to return to power

By Divesh Ranjan, Sandeep Pandey*  There are celebrations in the opposition circles that Bhartiya Janata Party has not been able to reach the half way mark to form the government and will be dependent on coalition partners to run the next government. It is being expected that alliance partners will exert some influence on the BJP to check its unbridled way of functioning where it does not even consult its own legislators. 

NE India: Creating 'greater divisions', BJP claims to have overcome tyranny of distance

By Makepeace Sitlhou*  In March, India’s prime minister, Narendra Modi, said at an election rally in Arunachal Pradesh that previous governments had not cared for states that sent only two representatives to the country’s Parliament, as Arunachal and several others in the Indian Northeast do. Modi failed to see the irony of his claim given that he has not visited Manipur, which has only two representatives in parliament, since the outbreak of an armed ethnic conflict that has raged on for nearly a year. The toll from the violence stands at more than 200 lives lost, and many thousands displaced.