Gay Marriages: A Controversy

A Division Bench of Justice A.P. Shah and Justice S. Muralidhar, in its 105-page order given on July 2, 2009 on a PIL plea by Delhi-based non-government organisation Naz Foundation, said: “We declare that Section 377 of the IPC (the controversial law on homosexuality which goes back 149 years when Lord Macaulay introduced the section in the IPC) insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution.”

Loud and colourful celebrations erupted outside the Delhi High Court after it announced its decision. “I return to India as a free gay man, free from violence, stigma and discrimination,” said founder of Humsafar and one of India’s most vocal gay rights activists Ashok Row Kavi, speaking to Mint from Bangkok where he was attending a UNAIDS conference. The ruling was widely welcomed as a critical first step in ensuring equal rights for sexual minorities. The 150-year-old law criminalised “carnal intercourse against the order of nature” thereby effectively criminalising same-sex relations between even consenting adults.

There are a whole range of emotions displayed when the subject of homosexuality comes up. There are violent arguments for and against such a union.

What is it about this subject that draws such vicious attacks and such vicious defence?

Looking at one side of the coin advocates of the HC order say: “The provision of Section 377 runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution.” As “there is almost unanimous medical and psychiatric opinion that homosexuality is not a disease or disorder and is just another expression of human sexuality”, a provision of law branding one section of people as criminal based wholly on the state’s moral disapproval of that class “goes counter to equality guaranteed in the Constitution”. Moral indignation, howsoever strong, is not a valid basis for overriding the individual’s fundamental rights of dignity and privacy. Constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view. Justice Shah, writing the judgement for the Bench, said: “It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual.” The Bench rejected the contention of the government that gay sex is “immoral” and homosexuals comprise only 0.3 per cent of the population and the rights of more than 99 per cent population cannot be compromised by legalising such behaviour. Gay rights activists all over the country welcomed the ruling and said it was “India’s Stonewall”. New York’s Stonewall riot in 1969 is credited with launching the gay rights movement.

What is clear from this is that the gay rights movement is slowly coming of age in India, emboldened by such developments as President Barack Obama’s promise to bring the “full spectrum of equal rights to LGBT Americans” and his Administration’s decision to endorse a United Nations resolution calling for the worldwide decriminalisation of homosexuality. In the words of activist and lawyer Aditya Bandopadhyay when talking to BBC,

We are elated. I think what now happens is that a lot of our fundamental rights and civic rights which were denied to us can now be reclaimed by us. It is a fabulously written judgement, and it restores our faith in the judiciary.

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This ruling is really historic in a country where homosexuals face discrimination and persecution on a daily basis but it is likely to be challenged, says the BBC’s Soutik Biswas in Delhi. This decision promises to change the discourse on sexuality in a largely conservative country. India has been deeply conservative on sexual matters where even talking about sex has largely been a taboo. Heterosexual couples rarely kiss or cuddle in public. Being openly lesbian is doubly hard in India, with its myriad caste and class distinctions. Public discussion of homosexuality in India has been inhibited by the fact that sexuality in any form is rarely discussed openly. In the past very few supporters were found of this phenomenon. Even they were highly criticised. For instance, Firaq Gorakhpuri, defending the Ghazal form of poetry from charges of depraving as they praise the beauty of young boys, had in a long essay that includes an eloquent defence of homosexuality, cited renowned philosophers, poets and other luminaries across the East and the West who were homosexual or had expressed homosexual desire in well-known works. He argued that great art cannot be subject to pedestrian prejudice and that homosexuality is intrinsic to the greatness of venerated figures like Sa’adi, Hafiz and Mahmud Ghaznavi.

However, in the last twenty years homosexuality has become increasingly visible in the print and audio-visual media, with many LGBT (Lesbian, Gay, Bisexual and Transgender) people coming out in the open, an active LGBT movement, and a large Indian LGBT presence on the Internet. Deepa Mehta’s 1996 film Fire, which depicts a romantic relationship between two Hindu women, and the recent film Dostana also tries to portray the same theme. Rajendra Yadav, a leading Hindi novelist, in his story Prateeksha (Waiting) depicts a homosexual relation between two women without censure and in detail,. The Malayalam novel Randu Penkuttikal (Two Girls) by noted writer V.T. Nandakumar gives a positive picture of lesbian relationships in Kerala and becomes hugely popular, especially with women and girl students. Lesbianism is not just a metro phenomenon influenced by the West. Lately in Chhindwada, a conservative town in Madhya Pradesh, two young girls—Jyoti and Savita—asserted their right to live as a lesbian couple after five years into a relationship.

In fact from the 1990s onward, modern gay and lesbian organisations have surfaced in India’s major cities and in 2004, plausible calls were made for the first time to repeal India’s outdated and nontraditional laws against homosexuality. In 2005, Prince Manavendra Singh Gohil, who hails from a conservative principality in the Gujarat State, publicly came out as gay. He was quickly anointed by the Indian and the world media as the first openly gay royal. He was disinherited as an immediate reaction by the royal family. On June 27, 2009, Bhubaneswar, the capital city of the Orissa State, saw its first gay pride parade. Internet has created a prolific gay cyber culture for the South Asian community. Gay dating websites provide an alternative way for meeting people; online communities also offer a safe and convenient environment for meeting gays all around India. (Indian law does not recognise same-sex marriages, nor does it provide for civil unions.)

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In spite of such a state of the LGBT movement in India if we look at the other side of the coin it is seen the religious leaders are not pleased with the Delhi High Court order. Interestingly, this is one rare issue on which the maulanas, the saffron brigade and the Church seem to agree. “Homosexuality is an offence under Islam and there are very few nations that have legalised it,” a Maulana elaborated. He termed it unnatural, ungodly and against Indian culture and moral values. Sanctioning it should not be tolerated. “Legalising homosexuality would lead to an increase in sex-related crimes, especially sodomy, where children would be victims,” he said. Even the supreme Sikh religious body, the Akal Takht, has issued an edict condemning gay marriage and has told Sikhs living in Canada not to support or allow gay marriages in gurudwaras. Although Hinduism is never known to exclusively ban homosexuality, certain Hindu fundamentalist factions are opposed to legalising homosexuality while certain others choose to remain silent.

As such looking from the religious point of view as well as the social and moral view it must be pointed out that this order may be beneficial for one section of society but it could become a factor leading to destruction of the pillars (the institutions of family and marriage) of the very human existence of which it is a part.

However positive for the gays, it poses a challenge to the most fundamental institution of society, namely, family. With the proliferation of homosexual relationships, the traditional values which our society treasures are being put at risk of being watered down and polluted so as to becoming meaningless. Longevity of relationships, monogamous relationships, lifetime commitments, giving birth to babies, providing these future citizens with a happy and safe domestic family environment and sparing them from situations that cause mental health problems and exposure to deadly sexually transmitted diseases, verbal aggression and domestic violence are all important factors for healthy family relation-ships and for children who are growing up and maturing.

The next institution to look at is that of marriage. Marriage between a man and a woman involves union and expression of mutual love. Heterosexual intercourse continues the cycle of humanity on this earth. This expression of mutual love by a man and a woman serves a biological function to create a new life. With more time, there is built up a familial unit of mother and father, daughters and sons, grandsons and grand-daughters, uncles, aunts, cousins, celebrations, ceremonies, observance of wedding anniversaries, establishment of family traditions etc. Moral and ethical values are formed and redefined and refined and practised—all built around the love, protection, safety and desirability of the family unit. These values will be incorporated into the cultural values of the contemporary society in which these families live.

In the sexual union of men and men and women and women, there is no such biological function available. There is no life in such a union, only sensual pleasure. The cycle of continuing humanity doesn’t exist. There is no baby, there is no larger family with moral and ethical values being formed, redefined, refined and practised. There is nothing to contribute to the cultural values of the contemporary society in which these people live.

Of course at times irresponsible acts are committed in heterosexual marriages. But people have been doing so for years and may no doubt continue to do so. Still attempting to redefine “marriage” as including two homosexual males, or two lesbian women is like taking away life from the very institution of marriage itself.

The Family Research Council has compiled statistics from the National Centre for Health Statistics, Centres for Disease Control and Prevention, US Census Bureau, Gay/Lesbian Consumer Online Census, US Department of Justice, General Social Survey, the National Health and Social Life Survey, statistics from the state of Vermont and Sweden (where civil unions of homosexuals are legal), and the Netherlands (where “gay marriage” is legal), and various sociological and demographic studies.

The Family Research Council states that

... the evidence indicates that “committed” homosexual relationships are radically different from married couples in several key respects.

“Relationship Duration”

Male homosexual relationships last only a fraction of the length of most heterosexual marriages and few homosexual relationships achieve the longevity common in heterosexual marriages.

“Monogamy vs Promiscuity”

Their research indicates that the average male homosexual has hundreds to thousands of sex partners in his lifetime.

“Relationship Commitment”

Even “committed” homosexual relationships display a fundamental incapacity for the faithfulness and commitment that is axiomatic to the institution of marriage.

“Number of Children being Raised”

Only a small minority of gay and lesbian households have children. Beyond that, the evidence also indicates that comparatively few homosexuals choose to establish households together—the type of setting that is normally prerequisite for the rearing of children. Only a small percentage of partnered homosexual households actually had children.

“Health Risks”

The evidence indicates that homosexual and lesbian relationships are at far greater risk for contracting life-threatening disease compared with married couples. Young gay men are more likely to contract HIV.

“Rates of Intimate Partner Violence”

Research indicates very high levels of violence in homosexual and lesbian relationships. Ninety per cent of the lesbians surveyed had been recipients of one or more acts of verbal aggression from their intimate partners during the year prior to this study, with 31 per cent reporting one or more incidents of physical abuse. The incidence of domestic violence among gay men is nearly double that in the heterosexual population.

Thus the Family Research Council has on the basis of this empirical study observed that homosexual relationships are shortlived, foster promiscuity, infidelity and violence besides the attendant health risk.

The above discussion indicates that the odds against gay marriages are greater than its positive outcomes. Though legally gay marriages/relation-ships cannot be termed as constituting a criminal act, their consequences are debilitating at societal, institutional, biological and ethical levels.

Dr Manini Garima is a psychologist.