Gay Marriage in India

Pallak Bhandari

Professor Schumacher

Writing 106

10 December 2015

Gay Marriage in India

        Dr. Priya Vedi’s last words were a plea to the Indian society to not build expectations of heterosexuality around gay men and force them to marry a woman. In a case that shook the city of Delhi, Priya, an anesthesiologist at the largest hospital in India, committed suicide on 18 April 2015 and left behind a note that talked about the agony she suffered on account of her husband’s sexuality. The Indian Express aptly described Priya and her husband, Kamal’s love story in a few words: “He is gay, she was in love. He couldn’t change, she couldn’t live (Chatterjee 1).” The five-year marriage involved Priya trying to ‘turn Kamal around’, and the torture inflicted on Priya once she became aware of her husband’s homosexual nature; the marriage remained unconsummated while the husband blatantly continued his affairs with several men. Vedi’s case accurately describes the Indian society where the gay community is being hidden in shadows in hopes that it might disappear while everyone suffers in the name of prestige and honor.

Everyone has the right to love, and to be loved. In Hendrik Hertzberg’s words, marriage should be between a spouse and a spouse, not a gender and a gender. However, 11 December 2013 proved to be the black day of freedom in India when the Supreme Court reinstated Section 377 of the Indian Penal code that criminalizes gay marriage, taking India back to the bleak days of colonial law when the law was first introduced. I believe that gay marriage should be legalized in India because love is unto itself a higher law, and every person should have the freedom to choose who he loves and intends to spend his life with. No other Priya should suffer anymore, no other Kamal should succumb to societal pressure and ruin a girl’s life - it’s time for a change.

        One of the most eminent directors of Indian film industry, Deepa Mehta successfully captured the essence of homosexuality in Indian culture through a critical scene in her 1996 film Fire. The protagonist Sita remarks to her lover Radha, “There is no word in our language to describe what we are or what we feel for each other (Dasgupta 651).” The dialog remarkably defines the invisibility of homosexuality within the Indian culture as the oppression has led the queer community to hide behind shadows. In the Vedi suicide case, the husband Kamal might have been a victim too: a victim of the homophobic Indian community. India is advancing but its inhabitants are still bound by the shackles of the society where any sort of Western influence is largely feared (yet cumbersomely popular and followed). We may have reached the moon, however, we remain primitive in our outlook and believe that homosexuality can be cured by marriage and children. It frowns on everything “different” and is callous in its prosecution of the homosexuality community. The society imposes an unrelenting pressure on getting married, so much that even a highly-educated gay man crumbles underneath it to enter a loveless marriage just to put an end to the gossip. However, nothing excuses Kamal’s behavior in any way or form but it does give us an insight into his life.

Section 377 states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine (Haldar, Partha, and Shashi Kant 57-58).” Chapter XVI reinforces that penetration is sufficient to constitute the carnal intercourse necessary for the offence described in this section. The law has criminalized “unnatural sexual acts” on a cognizable basis and has included homosexuality under punishable offences since 1862, when the law was first established by the British Raj in India. It has been extensively used by law enforcers to harass homosexuals and extort money from them. The evidence lies in the case of Jayalakshmi v. State of Tamil Nadu when a transgender, Pandian was arrested by the police for theft (Das 2). However, he was sexually exploited in the police station. Hence, he burnt himself alive in the premises of the police station. In another case, a transgender named Narayana was arrested in Bangalore on ground of theft as well. However, he wasn’t informed of the grounds of his arrest or given an opportunity to defend himself and his diary was confiscated by the police. He was blackmailed to reveal the names of other transgenders who were his acquaintances. Similarly, Section 377 was used as the grounds of arrest for the workers of a Lucknow-based NGO Bharosa for distribution of pamphlets providing advice of safe sex to homosexuals (Das 2). The act is also used to penalize heath workers for administering care to homosexuals.

        The law has also been used as an excuse for authorities to exercise indifference towards the sexual minorities and disregard concerns for their health and safety. Upon inspection of Tihar Jail, the largest prison complex in South Asia, it was revealed that the occurrence of sodomy was high among the inmates, hence, the medical team recommended supply of condoms to prevent spread of STDs among the inmates. However, the inspector general of Prison made a conscious decision to ignore any such recommendations to overlook the homosexual behavior among the inmates. Moreover, the Indian Medical Association and the Indian Council for Medical Research have failed in their role to define any guidelines for safe Sex Reassignment Surgery which forces transgenders to seek help from fraudulent doctors, putting their lives at peril. Hence, the law had successfully compounded the stigma of the LGBT community and abused them physically, sexually, emotionally and economically. The unjust use of Section 377 has led to many atrocities and violent acts being committed against sexual minorities. A startling example would be the night of 3 November 2013, when the entire country was decorated as a bride to celebrate Diwali and welcome the Goddess of wealth, the arrest of 14 health workers shrouded the state of Karnataka with darkness. The arrests were made under the complain that the victim had been pressurized to have “unnatural sex” with six workers and with an HIV infected individual over the course of several months in 2011 and consequently, he had contracted HIV.

The criminalization of same-sex marriage is in disagreement with Articles 14, 15 and 21 of the Indian Constitution. Article 14 of the Indian Constitution states that, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India (Bakshi 13).” It also focuses on the “doctrine of intelligible differentia” which states that a law must be clear and rational (Singh 569). Moreover, a law with an unclear construction causes uncertainty among people and offends the constitution (Abbas 481). Hence, Section 377 is in clear violation of Article 14 as it doesn’t provide a definition of the acts contained under it. Hence, it is inconsistent and irregular, and it has been interpreted in multiple ways and has covered non-penal vaginal sex, imitative sex and other acts that amount to sexual perversity. With focus on penile non-vaginal acts, Section 377 predominantly targets the sexual acts committed by queers and thus, this act is unequal. Similarly, Article 15 of the Indian Constitution states that, “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them (Bakshi 26).” Sex is a dynamic term and corresponds to what a person associates with, hence, it should include sexual orientation as well. The purpose of Article 15 is to prevent discrimination against people who choose to pursue a different path than the normal “roles” and section 377 violates this principle by persecuting queer people for being themselves. Article 21 states that no individual should be robbed of his personal liberty (Bhagvati 620), which threatens the underlying foundation of Section 377.