Legal and Ethical Consideration on Same Sex Marriages by Devendra Singh Sai

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Homosexuality has an ancient history in India. Ancient texts like Rig-Veda which dates back around 1500 BC[1] and sculptures and vestiges depict sexual acts between women as revelations of a feminine world where sexuality was based on pleasure and fertility. The description of homosexual acts in the Kamasutra, the Harems of young boys kept by Muslim Nawabs and Hindu Aristocrats, male homosexuality in the Medieval Muslim history, evidences of sodomy in the Tantric rituals are some historical evidences of same-sex relationships.
This is more of a religious debate then a political one. Large numbers of people in India are opposing it, as they say it is unnatural, uncouth and immoral. Those people who are opposing it their arguments are based on religious and natural law belief. Some people don't consider them as natural because they do not produce kids. Is it sacred if gay marriage is allowed God created Adam and Eve, we never find statements in Genesis about Adam and Eve? Why break God's law by allowing gay marriage? If nature wanted same-sex people to live together, there would only be one sex rather than different sexes. Our society is based on opposite sex marriage. If gay marriage is OK, then why can't a person marry his cousin, or his sister, or his cat. The law was created to keep the fabric of society together. It goes against the laws of the land that have been used for hundreds of years and were based on the basis of the commandments.
The law in India deals with this topic although are no explicit mention of homosexuality or hemophilia in any of the statute books of India[2]. A person cannot be prosecuted for being a homosexual or hemophilic. But the sexual act of sodomy is a criminal offence. The major provisions of criminalization of same-sex acts if found in the Section 377 of the Indian Penal Code (IPC) of 1860.
“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment of either description for a term which may extend to ten years and should also be liable to fine.”[3]
The offence of homosexuality is read under this section as an Unnatural Offence. The term Carnal Intercourse used in this section refers to sexual intercourse between men or in other words, homosexual relationships. Section 377 of the Indian Penal Code, was enacted by the British in 1860.
The Indian law against homosexuality seems to be too harsh. The Constitutional validity of section-377 of IPC was challenged in the Delhi High Court as being violate of fundamental rights guaranteed under the Indian Constitution[4]. Here it may be noted that, in practically all crimes against human body listed under the Indian Penal Code, some sort of physical violence or coercion is an essential element of crime. The only exception is in the favor of section-377, which criminalizes sexual activity that leaves no victims. In the history of the statute from, 1860 in 1992 there were only 30 cases in the High Courts and Supreme Court.  The small number of cases filed under this section shows that this section is redundant and outdated and needs to be repealed.
The Central Government has informed the Delhi High Court that homosexuality cannot be legalized in India as the Indian society is intolerant to the practice of homosexuality/lesbianism. To paraphrase, three things can be said about the government's stance[5]:
[a] the state has not just a function to, but actually a duty to stop unnatural sex, or else the social order would break down, law loose its legitimacy et al;[b] that our society does not tolerate homosexuality, and notwithstanding the universality of human rights or the universal applicability of our fundamental rights and freedoms, its criminalization is therefore justified; and[c] that it is really not our thing, its something that happens out there in the west, we do not have to copy that. In other words the three pillars of the classic culture arguments to criminalize the likes of us.
Gay and lesbian rights activists are protesting for decriminalizing the homosexual conduct. These are some arguments in favor of decriminalizing it, specifically in Indian context- in view of Section-377 of the Indian Penal Code.

(1)  It violates right to liberty guaranteed under Article-21 of the Indian Constitution[6]
The fundamental right to liberty (under Article-21) prohibits the state from interfering with the private personal activities of the individual. The concept of privacy is so broad that no comprehensive and all-encompassing definition of the term can be given. In the case National Coalition for Gay and Lesbian equality V. Ministry of Justice, the South African court held that, Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community[7]. Even at the international level, the right to privacy has been recognized in the favor of lesbians and gay man.

(2)  Criminalization of homosexual conduct is unreasonable and arbitrary[8]:
Infringement of the right to equal protection before law requires the determination of whether there is a rational and objective basis to the classification introduced. There should be a just and reasonable nexus between the classification and the object sought to be achieved by the legislation. Section-377 of IPC, its legislative objective is to criminalize all the sexual activities which are against the order of nature, thus punishing the unnatural sex[9]. Section-377 assumes that natural sexual act is that which is performed for procreation. Hence, it thereby labels all forms of non-procreative sexual act as unnatural. This gives a very narrow view to the distinction between the procreative and non-procreative sexual act. Hence, the legislative intent of creating a public code of sexual morality has no rational nexus with the classification created. Further the very object of the section is vague, unreasonable, arbitrary and based up on the stereotyped notion that sex is only for procreation. Now if this presumption is accepted is correct then, what justifies the policies of family planning and the use of the contraceptive devices

(3) Section-377 discriminates on the basis of sexual orientation[10]:
Article-15 prohibits discrimination on several grounds, which includes Sex. By prohibiting discrimination on the basis of sex, article-15 establishes that there is no standard behavioral pattern attached to the gender. The prohibition on non-procreative sexual acts imposed by section-377 prescribes traditional sexual relations upon men and women. In so doing the provision discriminates against the homosexuals on the basis of their sexuality and therefore constitutes discrimination on the basis of sexual orientation.

(4). Section-377 violates the enjoyment of civil laws and gay men and lesbians and leads to other adverse effects[11]:
Section-292 of IPC punishes Obscenity; the current definition of obscenity can lead it to incriminate the gay and lesbian writings[12]. As male homosexuality is a criminal offence, the presumption is that it is something depraved and can corrupt the minds and bodies of the persons. In the prevailing atmosphere any writing about the lesbians and the gay men can be criminalized, as homosexuality is treated as something immoral or depraved.
Thus a gay or a lesbian couple cannot claim the benefits under this section. This is not an isolated example and there are other such Acts that are discriminatory towards homosexuals. There are several sections in the Indian Penal Code which are anachronistic in a changed world. Section 377 is a prime example. The crucial words are "against the order of nature."
The argument that same sex marriages should not be made legal "because they do not produce kids" is ridiculous. Should heterosexual couples over 50 not be allowed to marry as they cannot produce kids either? If two people love each other and want to unite their destinies, then it is a beautiful thing which should be celebrated. Whether it is called "marriage" or "life pact" does not matter. Same-sex unions harm no one; one's support or opposition to this is a matter of personal belief and morality, with which the government has no business to interfere.
On the basis of the whole discussion on the aspect of same sex marriage that is Should it be legalized or not. It can finally be concluded by saying that homosexuality is not an offence; it’s just a way of pursuit of happiness, a way to achieve sexual happiness or desire. There is no reason, apart from blind prejudice, which prevents two gay people going through a civil ceremony which will give them the rights and securities which heterosexual couples enjoy. Marriage is a sign of commitment and love. If two men or two women want to show that commitment, how does that destroy or damage the ideals of marriage.
Devendra Singh Sai is the student of Symbiosis Law School, Pune. He can be reached at [email protected] . The views expressed here are of the authors.

[1] H. Saharay, Family Law in India, Eastern Law House (2011)
[2] G.C.V. Subbarao, Family Law in India, S. Gogia and company, Hyderabad, 9th Edition, (2009)
[3] H. Saharay, Family Law in India, Eastern Law House (2011)
[4] Robert J. Buchanan, Homosexuality in History
[5] Robert J. Buchanan, Homosexuality in History
[6] Sherry Joseph, The Law and Homosexuality in India.
[7] Beri B. P., Law of Marriage and Divorce in India, Eastern Book Company, Lucknow, 2nd edition, (1989)
[8] Sherry Joseph, The Law and Homosexuality in India.
[9] Beri B. P., Law of Marriage and Divorce in India, Eastern Book Company, Lucknow, 2nd edition, (1989)
[10] Sherry Joseph, The Law and Homosexuality in India.
[11] Sherry Joseph, The Law and Homosexuality in India.
[12] Beri B. P., Law of Marriage and Divorce in India, Eastern Book Company, Lucknow, 2nd edition, (1989)

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