Is gay marriage legal in India?

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In this brief article we are going to answer the question ‘’Is gay marriage legal in India?’’ we will analyze the laws of homosexual marriage in india, as well as its penalties throughout history.

Is gay marriage legal in India?

No, gay marriage is not legal in India. India does not recognise same-sex marriage or civil unions. But the Supreme Court decriminalized homosexuality in 2018.

In 2018, the Supreme Court issued a landmark verdict decriminalizing homosexuality and ending a court battle, striking down part of law with more than 150 years of history. Five judges of the high court have struck down section 377 of the Indian Penal Code, which prohibited same-sex relations, a landmark decision to end the marginalization of the homosexual community in India.

Hundreds of people waited expectantly for the verdict from outside the court gates and erupted in jubilation when they received a message on their cell phone alerting them of the ruling. 

“It’s the first step, there is still a long way to go, but finally we are no longer criminals in our own country,” said Smriti, a 19-year-old university student, while Rituparna Borah, an LGBT activist, told CNN that she was in shock: “It’s a very emotional day because it has been a long battle. Before there wasn’t much support from society or the media, but now we have it. People won’t see us as criminals anymore.”

 Ritu Dalmia, one of the five LBGTI women who signed the legal challenge, tells The Guardian that she now has “hope. I was becoming a cynic who no longer believed in the system, but it shows once again that, after all, we are a democracy where freedom of choice still exists.”

150 years old law

The British Empire colonized India in the mid-19th century and just two years later drafted a penal code that affected both Indian citizens and British citizens living in the subcontinent. The famous section 377 spoke of ‘unnatural offences’ and penalized “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal”.

According to that 1860 penal code, the punishment was “imprisonment for life,” although a prison sentence of up to ten years could also be handed down, in addition to a fine.

The Supreme Court’s formal statement specifically refers to “consensual adult” relationships without completely overriding the law, which protects against cases of sexual offenses against men. In the absence of a specific rule covering this situation, the current provisions relating to rape in the Indian penal code only refer to cases of sexual assaults on women, except for the recent Prevention of Sexual Crimes against Children Act which specifies the sexual offense of any child.

Therefore, the Supreme Court has emphasized the notion of consensus in its judgment, thus retaining the part of section 377 referring to the vague notion of “unnatural carnal access” to uphold the prosecution of sexual activities against the will of men, particularly against members of the transgender and intersex communities.

According to data from the International Lesbian and Gay Association (ILGA), nearly 1,500 people were arrested in India under Section 377 in 2015.

Legal battle

The road has not been easy for advocates of decriminalizing homosexuality. In 2009, the courts in the Delhi region ruled in their favor, finding that the ban on consensual same-sex relations violated fundamental rights. However, the Supreme Court overturned that ruling in 2013 following an appeal by several religious groups.

In that 2013 ruling, the Supreme Court stated that “only a tiny fraction of the Indian population consisted of lesbian, gay, bisexual or transgender persons” and that the repeal of the century-and-a-half-old law was “legally untenable.” 

Even the ruling Bharatiya Janata Party called the legalization of homosexual sex a “danger to national security.” Five years later, the Supreme Court reversed itself and decriminalized homosexuality, thus ending a ban of more than 150 years.

Although this is a big step, there is still a long way to go.

References

Unpacking India’s struggle with recognizing same-sex marriage. (2022, March 28). Retrieved from Global Voices website: https://globalvoices.org/2022/03/28/unpacking-indias-struggle-with-recognizing-same-sex-marriage/

Editorial. (2018, September 9). The Guardian view on gay rights: India backs freedom – others should follow. Retrieved from the Guardian website: https://www.theguardian.com/commentisfree/2018/sep/09/the-guardian-view-on-gay-rights-india-backs-freedom-others-should-follow

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