“If I wait for someone else to validate my existence, it will mean that I’m shortchanging myself.”
- Zanele Muholi
The LGBTQ people have always been there in society but, as a community, they came out recently. There are mentions of homosexual people in some of the ancient texts and paintings. But it has always been treated as a taboo because of which they were not able to come out openly to society up till very recently.
The condition of such people in ancient times and how they were still acceptable in the Indian society but with the coming of the British time, they made it seem unacceptable, and then section 377 came into existence and how sexual intercourse between homosexuals was criminalized. Thereafter it was decriminalized. That day was a ray of hope for the people of this community since they were being recognized publically.
While LGBTQ people have seen a much change through and of the society towards them ranging from the ancient to British period and thereafter in the present era. Decriminalizing section 377 brought a major relief and dignity and respect in the life of this community. But the recent saying center on making same-sex marriages illegal and not permitted is something that we need to look upon. There is a fundamental right to marriage, isn’t it extended to the LGBTQ people. A time to change the outlook has arrived and equality should be given to all people irrespective of their caste, class, race, interests, etc.
WHY SAME-SEX MARRIAGE NOT PERMITTED?
The Centre has opined to Delhi High Court that there exists no fundamental right to seek recognition for same-sex marriage in India. The Centre has claimed that marriage is not a union of two individuals but it is an institution between families in India. It is also an institution between the biological man and the biological woman.
Decriminalizing section 377 allows same-sex individuals to live together as partners and have a sexual relationship but it does not include the family concept in the same. In India, the family concept is seen as a husband, wife, and children who are borne out by the union of two.
It urged the court to dismiss petitions further stating marriage is essentially a socially recognized institution as a union between two individuals that are either governed by uncodified personal laws or codified statutory laws. Any judicial interference will cause havoc with the delicate balance of personal laws the center further stated to Delhi High Court.
Marriage is considered to be a sacrament and it depends upon the age-old customs, rituals, practices, cultural ethos, and societal values. The four gay people had urged the Delhi High Court to declare that the marriage between two same-gender people or irrespective of their sex is solemnized. A bench of Justices Rajiv Sahai Endlaw and Amit Bansal has sought the response of the center on the plea filed by four people asking them to declare that Same-sex marriages are valid under SMA. The next hearing is listed on April 20.
It further has contended that fundamental right under article 21 is subject to the procedure established by law. It does not include the fundamental right for same-sex marriage to be recognized under the laws of India. The Government also said that the court can only analyze existing rights, but it cannot create a new right. Same-Sex marriage is neither recognized nor accepted in any law.
It said that if they created any interference in the existing marriage laws then it could create havoc. It may also lead to further anomalies in the governance of marriage between the persons belonging to the Christian and Muslim faith.
In my opinion, just because it will create havoc in the existing laws doesn’t mean that LGBTQ people will be denied their rights and opportunity. Also, the center can’t shirk off by giving the reason for marriage, sacrament. The right to marriage is a fundamental right granted to every person. Every person does include the people of LGBTQ too. Also, the state can’t discriminate against anyone. It cannot snatch their basic rights.
Bob Paris said, “Every Gay and lesbian person who has been lucky enough to survive the turmoil of growing up is a survivor. Survivors always have an obligation to those who will face the same challenges.”
1. THE TIMES OF INDIA, https://timesofindia.indiatimes.com/india/same-sex-relationships-not-comparable-with-india-family-unit-made-of-biological-man-and-woman-centre-tells-hc/articleshow/81218712.cms, (last accessed on February 27, 2021)
2. THE INDIAN EXPRESS, https://indianexpress.com/article/india/same-sex-marriages-legal-recognition-centre-7204303/, (last accessed on February 27, 2021)