This article is written by Divya Kathuria, a student of Raffles University

Introduction

“But the fact that same-sex marriage is still an issue is insane. Thinking love knows a sex is ridiculous.”- Garret Dillahunt (American actor)

“We will see a breakdown of the family and family values if we decide to approve same-sex marriage, and if we decide to establish homosexuality as an acceptable alternative lifestyle with all the benefits that go with equating it with the heterosexual lifestyle.“-Jerry Falwell

“I don’t think that a same-sex marriage is the way God intended it to be.“-Joel Osteen

The statements written above by various renowned people mentioned here at the beginning of the article do not intent to establish any opinion but, instead, these contradicting opinions are evident of the fact as to how debatable the issue has always been and how debatable it has now become all over the world when USA has legalized same-sex marriage on 27^th June, 2015 in Obergefell v Hodges.[1] Through this article, I intend to discuss if it should be legalized in India or not?

The discussion on this point would definitely have infinite opinions clubbed with variety of arguments ranging from scientific facts to mythological traditions. We here need to analyze as to which argument or opinion is important for society’s development.

I am at liberty to decide whom I would marry!

Isn’t it as simple as that? As long as I am not harming anybody, I am at liberty to do whatever I want to do. This is the simple form of JS Mill’s Harm Principle that actions of individuals should only be limited to prevent harm to other individuals. So, when I marry the person of same sex to me and it neither harms anybody nor the other person then, I am at absolute liberty to practice it.

Concept of self ownership

Idea of self ownership was given by Robert Nozick. As the nomenclature itself suggests, it means I am the owner of my own self. When I own myself, it is only I who will decide whom I should marry. State has no right to intervene in between because is State does this; it would mean that my ‘person’ belongs to State, not to my own self. If you own yourself, it follows that you have a right to determine whether and how you will use your self-owned body and its powers, e.g. either to work or to refrain from working. However, I do not support Nozick’s idea of minimal state but, the idea of self ownership is quite helpful in determining the rights of LGBT community.

Homosexuality in Hindu mythology

The main argument generally given against homosexuality is that it is against Indian Culture and moral values. It is similar to a situation when a butcher claims he is vegetarian. How can we say that homosexuality has been adapted from west when it is deeply imbibed in our ancient culture and mythology? It is pointless to argue against same-sex marriage on moral and cultural grounds because they undoubtedly permit it.

1. Homosexuality in the Vedas

The Vedas are the source Scriptures of Hinduism and are considered to be timeless and not composed by any author (not even by God Himself). Dating by modern scholars of these ancient Sanskrit texts range from 4000 BCE to 1000 BCE. Whatever be the case for the literary antiquity of these texts it is more important to consider their meaning and function in the Hindu world view. The Vedas are considered to be the source of, and infallible authority regarding knowledge of the Absolute (Brahman) and in all matters pertaining to Right Ethical Living (Dharma).
But the Vedas deal with Dharma in its pure abstract form — the function of the latter sages and law-givers was to interpret this usage of Dharma in the context of society and social dynamics of thetime.
Homosexuality is not mentioned per se in the Vedas but there are some interesting references to homo-eroticism. One is from the Kaushitaki Brahmana Upanishad 2:4 of the Rig Veda:—

“Now then the intense longing of love stimulated by the gods. When one (m) desires to be loved (priya) by a man or a woman or by men and women, he shall offer to the above mentioned gods oblations in the sacred fire”.

This is followed by the description of the ceremony to be performed. Another casual reference is from the Shatapatha Brahmana (2:4:4: 19): in which Mitra — the god of the day is said to implant his seed in Varuna the god of the night on the New Moon day.[2]

2. Homosexuality in Kamasutra

The famous Kama Sutra was a text considered as supplementary to the sacred law which deals in great detail with eroticism, sex and its various manifestations. It was written around the 4th century AD and describes customs and social conditions prevalent from about the 4th century BCE. It inspired many of the erotic sculptures found on temple facades. In this text lesbianism is described in detail, as well as the swapping of male female roles with the female being the dominant one and using accessories to penetrate the male. From the text we discover that male homosexuality formed an integral part of Indian sexual life and various homosexual practices are described in detail. We also learn that transvestite prostitutes as well as courtesans played an important role in public life and were considered harbingers of good fortune at weddings and religious ceremonies — a belief which is also prevalent in present day India. In his introduction the author sage Vatsyayana discusses categories of sexual partners in a quite non-judgmental way concludes the discussion with:- “To these must be added the third nature (tritiya prakrti), the inverts or the homosexuals who have particular practices and constitute a fifth category of sexual partners.” 1:27 Chapter 9 of the Kama Sutra is dedicated to oral sex in general with the major part dealing with this particular activity between men. Interestingly enough Vatsyayana also mentions that some people “marry” (parigraha) members of their own sex and live together either openly or in secret.[3]

3. The tantric tradition and homosexuality

Within Hinduism there are two principle paths to achieve liberation from the cycle of births and deaths and be re-united in the Divine from whence all beings have emerged. One is the exoteric path of the householder following social rules and regulations in accordance with the sacred canon law, and the other is the esoteric path of the monastic or renunciate who has rejected all of society’s arrangements and has retired to a monastery to spend the rest of the time on earth in contemplation of the Divine. There is a third path known as Tantra which reconciles these two extremes. It is known as the Path of ecstasy because it incorporates all aspects of the human nature and harnesses of one’s drives to achieve spiritual enlightenment. The principle axiom in Tantra is that every aspect of being can be useful in spiritual practice — including sexuality — as long as no one is harmed thereby. The overriding principle of Hinduism is that any act which intentionally causes suffering to another is sin. So in Tantra one is free to use one’s sexuality in a spiritual context as long no one is hurt thereby.[4]

The Tantra posits the idea that God is androgynous and that one who is in touch with both the male and female sides of their being are closer to the divine than others who are polarised in their sexual orientation. Although Tantra is overwhelmingly heterosexual in its methodology; the homosexual is by no means excluded, condemned or marginalized. Those practitioners of Tantra who are of the homosexual persuasion need to fill in the gaps themselves![5]

All these are certain instances which are a proof of the fact that homosexuality is nowhere ruled out by our culture while there are many more of such instances which ensure the presence of homosexuality in Indian culture.

Homosexuality is logically no offence

We punish a thief for stealing, a rapist for raping, a murderer for murdering. But, can we punish a girl for being a girl or a boy for being a boy? Obviously, No! So, why does our country punish homosexuals for being so? Although the cause of homosexuality has still not been determined exactly but, it depends somewhere on biology of the person that is, genes and somewhere on his personality that is, the social conditions and environment in which he has been brought up. Some scientists have intently tried to discover scientific proof that same-sex attraction is genetic. Some studies hint at a biological component, but have not proven that same-sex attraction is simply an inborn or biologically-determined characteristic.

Biology may play some small role in influencing behavior or feelings. Some people seem susceptible to particular actions and may be drawn toward them or become addicted to them more easily than other people. One person may be able to dabble with gambling, while another becomes a compulsive gambler. Some may drink only socially, while others have an unusual attraction to alcohol. Studies indicate that genetics may be a factor in susceptibilities to some behavior-related disorders, such as aggression, obesity, or alcoholism. Likewise, there are theories that claim biological predispositions influence the development of homosexual attractions when other life experiences are also present.[6]

Every person has a unique personality. We have different likes, desires, dreams, and moods. We see ourselves and the world in different ways and each of us hopes for something a little different from life. One child may be content with the affection he receives from his parents, while his sibling who receives the same attention feels a deficit and requires more. Some children seem content to play by themselves, while others who have many friends seem to need even more.

Many men with same-sex attractions have a heightened sense of emotional sensitivity which can make them vulnerable to emotional hurt when their high expectations are not met. Since we all have different needs and perspectives on life, it is easy to see why two people in the same situation will react differently. For one person, a negative situation may be manageable, while for another it is a devastating crisis.[7]

Professionals agree that environment influences a child in significant ways. Your family, friends, society, and experiences influence how you feel, how you view life, and how you act. Dr. William Consiglio refers to this myriad of social and psychological factors as a “conspiracy of factors,” meaning that many factors “conspired” or came together in the right amounts at the right time to divert sexual desires in you as a developing child toward other children. Some of these factors include your relationship with your family and peers, your ability to identify with masculinity or femininity, the degree to which your emotional needs are fulfilled, your feelings of self-worth, and early sexual experiences.[8]

However, homosexual character of a person is the net result of his personality, genes and developmental process and he cannot be blamed for any of these. One can say that a thief might also be a thief because he has been brought up that way but, there is a difference of night and day in the situation of an offender and a homosexual. An offender otherwise harms the society, but, a homosexual is not at all harming anybody in the society but, are just practicing their freedom and liberty. So, it is logically absolutely senseless to criminalize homosexuality.

Criminalizing homosexuality under Section 377 of IPC, 1860 is unconstitutional

1. It violates right to liberty conferred on us by Article 21 of the Constitution.

The fundamental right to liberty definitely includes right to private space. Jeevan Reddy, J in R. Rajagopal v. State Of T.N[9] held that right to privacy is implicit under Article 21. Any consensual sexual act between two individuals is their personal affair and any intervention in it by State would lead to disturbance in their privacy and thus, under Article 21 as well. In National Coalition for Gay and Lesbian equality v. Ministry of Justice[10], South African court held that, Privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. Even at the international level, the right to privacy has been recognized in the favor of lesbians and gay man.

2. It is unreasonable and arbitrary and thus is violative of Article 14 of Constitution.

Article 14 provides for equal protection of laws for all the people. However it permits classified legislation which in turn in tested upon two factors that is, the classification must be reasonable and there should be a direct nexus between the classification and object sought to be achieved by the legislation.[11] First of all, the classification under Section 377 is not reasonable because it has classified the people on the basis of their sexuality which is prohibited under Article 15 that is, one cannot be discriminated on the basis of sex. By prohibiting discrimination on the basis of sex, article 15 means that there are no standard behavioral patterns related to the gender. The prohibition on non-procreative sexual acts imposed by section 377 prescribes traditional sexual relations upon men and women and classifying them on the basis of their sexual orientation is thus arbitrary on the face of it.Secondly, the object of this provision is to criminalize all the sexual activities which are against the very order of nature. This means, according to legislature any kind of non-procreative sex is unnatural. The nexus between the act and the object is quite vague because it is based on the typical stereotyped notion that sex is only for procreation. Even if we accept the presumption that sex has to be only for procreative purposes then, what will justify the policy of family planning and contraceptive measures? It would then mean that one statute is clearly in contradiction with another.

Conclusion

However, despite all the arguments in the favor of homosexuality, we know that there will definitely be certain problems that might be faced by the country if homosexuality is legalized but, this does not mean that the minority rights of LGBT community should be suppressed. We obviously can’t make an omelet without breaking a few eggs. Every law when freshly introduced brings with itself various controversies and issues which can be easily tackled with the passage of time as law on any point would never stand still and will keep on evolving. So, there is no harm in legalizing the same-sex marriage in India as it will not only develop the society by recognizing the rights of minority but also, will be in accordance with the ancient culture of our country too.

[1] http://www.theguardian.com/society/2015/jun/26/gay-marriage-legal-supreme-court last visited on 2nd July, 2015

[2] http://history-of-hinduism.blogspot.in/p/homosexuality-and-hinduism.html

[3] Ibid

[4] Id

[5] Id

[6] http://www.samesexattraction.org/What-causes-same-sex-attraction.htm last visited on 2nd July, 2015

[7] Ibid

[8] Id

[9] 1994 SCC (6) 632

[10] 1999 (1) SA 6

[11] Chiranjit Lal v. Union Of India AIR 1981 SC 41