The LGBTQ community’s battle for official recognition and its struggle to acquire various social and constitutional rights has long been standing in the country.
Homosexuality is hardly a novel concept in our country. What many perceive to be a ‘Western trend’ or a ‘Western import’ in actuality, has evidence of its existence dating back to the pre-medieval ages. Stories of homosexual individuals have been documented in the Rigveda (1500 BC). The Karma sutra exhibits photos of homosexual activities as well as of young boys held by Muslim nawabs and Hindu aristocrats are some of the documented evidence of homosexuality within the Muslim Medieval period. Although writings of the Manu Smriti penalize indulging in homosexual acts, several other manuscripts also confirm the practice of homosexuality among men and women in ancient India.
However, the rise of an extremely repressive Brahminical society in the later Vedic period (1000-500 BC) and later the British colonization of the Indian subcontinent greatly decreased any homosexual activities since society became highly patriarchal. The British Act of 1861 penalized anyone who “voluntarily has carnal intercourse against the order of nature with any man, woman, or animal. “Moreover, a narrow, mainstream definition of marriage and love emerged, one that defined both to be naturally between individuals of the opposite sex; this dominated Indian society for most of history. Any individuals suspected of indulging in homosexual activities were publicly shamed, beaten up, and even persecuted by society. Thus, Gay marriage soon became a taboo, left only in the fragile pages of our history.
Things hardly changed when India gained independence in 1947. Queer persons still could not open up about their sexuality, and doing anything remotely similar would mean ‘social death’ Gay marriages were viewed to be morally wrong and labeled a misfit in the fabric of Indian society.
The 21st Century brought the age of the internet. With newer technologies, and widespread dissemination of knowledge and information, the Indian LGBTQ community got renewed hope; they hoped that this democratization of knowledge would instill greater awareness about homosexuality in society; however, governmental recognition and protection still seemed to be a distant reality.
This distant reality was partially manifested in the historic judgment of 7th September 2018, when, the High Court with a five-judge bench unanimously decided to strike down the barbaric section 377 that criminalized homosexuality. Delivering his decision, Chief Justice of India Dipak Misra said, “The LGBTQ community has the same fundamental rights as citizens. The identity of a person is very important and we have to vanquish prejudice, embrace inclusion, and ensure equal rights.” Although many rejoiced in the revolutionary decision, several questioned the government’s next course of action and how it sought to further guarantee greater provisions and safety for the queer community. Although the decision of 2018, recognized the rights of homosexuals, it hardly did anything to ensure that homosexual relationships received the same treatment as their heterosexual counterparts.
For one, same-sex marriages were still not legally allowed and neither was adoption by homosexual couples. One of the primary reasons homosexuality has not been acknowledged as 'normal' in India is the lack of a 'stamp of marriage. ‘In a reply to a 24PIL4 in 2020, the Union Government through Solicitor General quoted that "Our (Indian) legal system, society, and values do not recognize same-sex marriages. “He further said that the 2018 judgment merely decriminalizes homosexuality or lesbianism, nothing more nothing less. Thus, there is a need to formulate legislative policies and laws that are more gender-inclusive and aim for equality irrespective of one’s sexual orientation. Moreover, heterosexual marriage is seen as the foundation of many other rights such as maintenance, inheritance, guardianship, adoption, and custody. So, denial of gay marriage rights will also mean denial of all these other rights.
Fortunately, it seems now, after almost five years of the landmark strike down of Section 377, India might soon legalize same-sex marriages. At least a dozen and half gay couples in the country have petitioned the Supreme Court of India to allow same-sex marriage in the country. Chief Justice DY Chandrachud has formed a five-judge bench to carry out the rule on the “seminal important” matter. The hearing will be live-streamed in public interest. Queer individuals across the country are hoping for a judgment in their favor, which they believe will help foster an environment that safeguards their rights and protects them from the heinous acts routinely committed against their community. The plea has received criticism from the various state governments while the center accused it to be of an ‘urban elitist view’. Nonetheless, a favorable decision will make India the 35th country in the world to legalize same-sex unions and set off momentous changes in society. A lot of other laws, such as those governing adoption, divorce, and inheritance, also need to be reframed.
While we already see many individuals coming out on social media and receiving plenty of support and admiration, the situation seems optimistic only in relatively urban areas where the youth is much more informed. Appropriate governmental policies and laws could help improve the scenario in other backward, underdeveloped areas where homosexuality is a relatively alien concept. Individuals in these areas tend to hide their true identities and sexualities in fear of the conservative and heteronormative societies that they are brought up in. LGBTQ support groups and ‘safe spaces,’ counseling centers’ along with a greater focus on combatting homophobia through the educational curriculum need to be implemented to fight the rigid and repressive gender-centric stereotypes in Indian society.
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