By:- Viraaj Kumar Kulshreshtha
India is known worldwide for our reverence, respect, and tendency to have large and extravagant weddings. Yet, a portion of our population has been denied the right to have their union constitutionally recognized. Same-sex marriage is one of the most contentious issues and is not limited to India.
It has been one of the issues at the forefront of the culture war between political parties. Unfortunately, in many cases, it is also the cause that political parties unanimously stand against. It is then imperative that we look at and review India’s progress regarding its treatment of non-cis-hetero-conforming individuals.
The landmark decision decriminalizing same-sex marriage after the Navtej Singh Johar v. Union of India case made India among the last significant countries to reach this point. However, this wasn’t an easy road for the LGBTQIA+ community, forcing them to fight for their fundamental rights for the longest time.
However, activists supporting the LGBTQIA+ community have long been active in India. In 1992, the first protest for gay rights in India after independence was held. It was a protest against the then prevalent practise of police harassing and detaining men suspected of homosexuality.
In 2007, Article 377 was recognized by the Delhi High Court to be a violation of the Fundamental Right to Life granted to a person, along with a few other legal prohibitions. As a result of this ruling, combined with the High Court ruling applied to Pan India, the Ministry of Home Affairs expressed its opposition to the decriminalization of homosexuality in 2012, followed by a complete stance reversal by the ministry a few days after they initially expressed their opposition.
Amongst the women’s rights activists, Kiran Bedi is often cited as the person who broke many barriers for women to enter male-dominated fields. Unfortunately, when it came to the LGBTQIA+ community, it seemed as if she was setting up obstacles for other marginalized groups in society. When LGBTQIA+ activists requested the inmates be educated and provided with preventative measures for AIDS, Kiran Bedi strongly opposed it and threatened increased surveillance of the suspected gay detainees.
In December 2015, a bill to repeal Article 377 was raised but was rejected by a majority of the house against the bill. Following this, there were many organized movements for LGBTQIA+ rights in almost every subsequent year leading up to the 2018 decision to repeal the article. Even the supposedly progressive UPA alliance made itself one of the biggest roadblocks throughout the journey to repealing the article.
This is just the preamble to the main concern at hand, the legalization, and acknowledgement of gay marriage in India. Given the present scenario, what is highly outdated and causes a hurdle for same-sex marriage legalization in India is the different marriage acts for each major religion. Activists have been fighting for a uniform civil code for a really long time. When in 2018, the ruling party BJP, showed its support, there was a glimmer of hope that this might pave the way for the amendment of marriage acts to include LGBTQIA+ people.
Unsurprisingly, it was evident that the only goal of the proposal was to cause communal strife when in 2020, the union minister clarified that same-sex marriage was not even in consideration for the proposal. The legal battles started as soon as 2018 with the Shakti Vahini v. Union of India, where it was argued that a consenting adult has the choice of who to marry despite their gender.
The court, however, ruled in a vague manner, which activists say might be interpreted as a pseudo recognition under the Special Marriage Act after joint reading. There were three significant cases in 2020 which were all dismissed by the Union Government –
1.Abhijit Iyer Mitra & Ors v. Union of India;
2.Dr Kavita Arora & Anr v. Union of India; and
3.Vaibhav Jain & Anr v. Union of India.
In January 2021, it was stated that the government had to focus more on the pandemic being a bigger problem. This response was infuriating and somewhat ironic when one considers the incompetency and the inability displayed by the government once the second wave hit India. It is pretty evident that the government was deliberating on the pandemic when in 2020, a bill to set up a central council for homeopathy, a known pseudo-science, was promulgated.
Besides the hurdles mentioned above, there were plenty of minor hurdles that the community as a whole had to overcome. The first amongst these was the presence of misinformation being spread to the public thanks to various social media networks and other forms of media. One of the biggest threats to the existence of homosexuality in rural India is honor killing, where the children are killed by their families if they commit an act that brings “shame” to them. The acts range from inter-caste marriage, homosexuality, or even wearing jeans.
There is an additional layer of misogyny while talking about women and girls as it brings into the context that women are statistically more likely to be victims of crimes such as Honour Killing. On a smaller scale, the disproportionate acts that affect women, such as using gender essentialist language, discouraging inter-caste marriage, or talking about how they should dress, also negatively affect any progress made in LGBTQIA+ rights.
There are two ways to approach these micro and macro issues. We can either use a top-down or bottom-up approach where we change laws or the minds of the masses. However, coming from the top is easier because amending and changing laws has a trickle-down effect and has been successful worldwide. While only one of them would not be enough to ensure a smooth transition into an age of acceptance, as we direct more resources to fight the unjust laws, we also need to slowly change the populace’s view through positive representation in the media.
Even if this seems like an uphill struggle, we need to fight to the top, and if any group is shown to persevere throughout the ages, it is the people of the LGBTQIA+ community. It is also important to remember the progress we have achieved to fuel our future battles. We see an apparent increase in public acceptance of same-sex marriage from 29% in a 2015 poll to 44% in 2021.
We should also be proud of and secure the better treatment of transgender people even when compared to supposedly developed countries like the United States of America or the UK.
Compared to these countries, a country like ours can study and review the laws and the subsequent progress of other countries, amalgamating them to form the best possible environment for members of the LGBTQIA+ community, helping them to feel more comfortable in their skin. It is always helpful for us to be hopeful that same-sex marriage, conversion therapy bans, and adoption rights issues are only looked at in retrospect in the next couple of years.
Caption – India is known worldwide for our reverence, respect, and tendency to have large, extravagant weddings. Still, a portion of our population has been denied the right to have their union constitutionally recognized. Same-sex marriage is one of the most contentious issues and is not limited to India. Over the years, there have been many cases that have been important for the LGBTQ+ Community. Join us as we go over India’s progress when it comes to Same-Sex marriage.
On post: Same-sex marriage is one of the most contentious issues and is not limited to India. It has been one of the issues at the forefront of the culture war between political parties. It is then imperative that we look at and review India’s progress regarding its treatment of non-cis-hetero-conforming individuals.
Fifth Pillar - VIT 