Marriage in India was never just about the union between two individuals, instead, it is an important institution. In a country where the family is held to be the most important unit of life, marriage between a biological man and woman has always been encouraged. 

According to Gender and Queer studies, more than 5 to 10 percent of the population identifies as queer. In such a scenario, same-sex marriages should be a valid legal option. Even if same-sex couples aren’t quite high of a phenomenon yet (in India), it is common. 

In India, the debate concerning same-sex marriages isn’t just a political discussion, it is more of a religious one. Even if marriage is considered to be a sacred union between a biological man and woman, citizens of India would like to believe that our country was founded on the principle that everybody has the right to the pursuit of happiness. 

And, if a man marrying a man or a woman marrying a woman, makes them happy, it doesn’t affect anyone else negatively. 

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In today’s article, we have reviewed the debate about same-sex marriages keeping in mind the current political climate of India, especially in light of the recent verdict passed. 

History of homosexuality in India

Same-Sex Marriage

Homosexuality in India isn’t a new phenomenon. Instead, it dates back to ancient India. Ancient Indian texts like the Rig-Veda (1500 BC) have mentions and depictions of sexual acts between women as the revelation of a feminine world, with a special focus on fertility.

Similarly, there are descriptions of sexual acts in the Kamasutra, sodomy has been evidenced in ancient tantric rituals, along with other historical depictions of same-gender marriages and relationships. 

However, these depictions started losing their significance with the imposition of Vedic Brahmanism and British Colonialism. The Aryan invasion has been linked to the emergence of patriarchy and efforts to suppress homosexuality while encouraging heteronormative behavior.

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In the Manusmriti, there are mentions of heinous punishments on account of homosexual behavior. These specifications of punishments may have lead to the widespread acceptance of heterosexual behavior, and marriage unions between men and women. 

In either case, these references point to the contradictions in the norms of compulsory heterosexuality prescribed by Brahmanical partite. However, both sexual systems coexisted, despite the fluctuations in relative repression and individual liberty and freedom.

With the advent of British Colonialism, the destruction of images of homosexual expression and sexual expression, in general, became more systematic, blatant, and eventually a punishable criminal offense. 

Thus, India began to accept the homophobic and Victorian puritanical values that regarded the display of such sexual images as pornographic and evil. Since time immemorial, the Western view regarding homosexuality has been strongly guided by the reproductive principle of sexuality. Thus, the Indian psyche accepted the moral and psychological idea of sexuality being pathological, rather than the simple expression of desire and pleasure. 

Since the 1970s, homosexuality began to be accepted in India. It ceased to be considered abnormal behavior and was removed from the classification of mental disorders. Homosexuality was decriminalized in several countries, some of which were former colonies of Britain. In 1994, South Africa became the first nation to constitutionally safeguard the rights of queer and non-binary people. Canada, France, Luxembourg, Holland, Slovenia, Spain, Norway, Denmark, Sweden, and New Zealand also have similar laws in place.

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In 1996, the US Supreme Court ordered that no state could pass legislation that discriminated against homosexuals. However, in India, so far no such progressive decisions have been taken and homosexuals are victims of violence in different forms including state-supported crimes. 

Homosexuality laws in India

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Even though there is no explicit mention of homosexuality in any of the statute books of India, and a person cannot be persecuted for being a homosexual, but the act of sodomy is a criminal offense. The provisions for the criminalization of sexual acts like sodomy are found in Section 377 of the Indian Penal Code. 

Thus, whoever has carnal intercourse with a man or a woman is subject to punishment with imprisonment for a term that may extend to 10 years, and is also liable to pay a fine. The offense of sodomy and homosexuality is mentioned under the section of Unnatural Offence. 

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Thus, Indian laws against homosexuality are too harsh. In response, the constitutional validity of such laws was challenged by the Delhi High Court as being a violation of fundamental rights guaranteed by the Indian Constitution. 

The Central Government mentioned in its affidavit that the acceptance of the institution of marriage between same-sex couples is neither accepted nor recognized in any uncodified personal laws or codified statutory laws. Also, the question as to whether same-gender marriages are to be permitted and formalized by legal recognition is essentially under the jurisdiction of the legislature and is not a topic of discussion by judicial adjudication. 

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The Centre has also rejected the claims of the petitioners that the concept of marriage falls within the private domains of individuals, declaring that marriage has a public aspect to it as several statutory rights and obligations are connected with it.

Thus, the Central Government has ruled that homosexuality and same-gender (same-sex marriages) unions cannot be legalized in India. Indian society is intolerant in matters concerning homosexuality and same-sex marriages.

To paraphrase the Centre’s stance, it can be said that:

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  1. Our society does not and will not tolerate homosexuality and despite of the universality of human rights and individual freedom. 
  1. The state sees it as its function and duty to curb all acts of unnatural sex, or else the social order would break down, and laws would lose their legitimacy. 

Keeping all political inclinations aside and speaking from a purely human rights point of view, criminalizing sexual activity isn’t helping homosexuals, nor is it protecting the values of society. Instead, the political climate of the country with light to these events is extremely volatile right now, and riots and processions can be anticipated soon. 

With that being said, India should legitimize same-sex marriages to safeguard the rights of the queer and to move forward in the direction of progress and universality of human rights.