By Bratati Lahiri
Introduction
Following the decriminalisation of homosexuality, numerous petitions nationwide sought legal recognition of same-sex marriage. Supriyo v. Union of India[1] consolidated twenty petitions from same-sex couples, transgender individuals, and LGBTQIA+ advocates, challenging the marriage laws.[2] These petitions are of particular importance as they noted that simply removing laws that criminalise homosexuality does not fully address the discrimination experienced by same-sex couples. The basis of discrimination is wide-ranging and cannot solely be attributed to a particular cause. Despite the intertwined nature of the discrimination criterion, hurting religious sentiments remains one of the most debated reasons. Thus, understanding and working with these religious sentiments would help increase the acceptance of marital status for LGBTQIA+ community.
A seamless connection of legal developments with societal transformation is necessary for proper acceptance of LGBTQIA+ relationships. This entails promoting communication across political, religious, and social organisations to promote inclusion and acknowledge same-sex partnerships via historical and religious antecedents. Legal precedents, historical background, and cultural ramifications all contribute to our comprehension of the route ahead in pursuing LGBTQIA+ community marriage rights and the role of legislation as a catalyst for social change.
Thus, the first part of the blog analyses how religious scriptures do not prohibit same-sex marriage. Religious scriptures are an essential component for ascertaining the validity of religious values. They provide the background on the religious practice. This helps ascertain the reasons and the validity of these practices and if they still apply today. This accentuates the societal endeavour to reject such a union based on wrongly interpreted religious values. The second part of the blog aims to analyse how religious and discriminatory practices invalidate the understanding of fundamental rights granted under Art 21 of same-sex couples, thus stunting the development by relying on religious scriptures which provide a mechanism for acceptance of same-sex unions. Thirdly, the blog delves into how a society changes its shape by adhering to laws, thus necessitating legal reforms to ensure societal impact.
Historical and Religious Acceptance of Same-Sex Relationships
Religious scriptures and architecture are depicted to be tolerant of homosexuality. Various historical examples, like the Sun Temple in Konark[3] and the Ellora caves, feature depictions of same-sex relationships, suggesting societal acceptance, even in revered places like temples.[4] The depiction of same-sex relations adorning the walls of temples signifies the religious acceptance of the concept among the Hindu priests and the higher social strata of the community. The continued practice of worship further strengthens the belief that homosexuality was not despised or considered a taboo even by the common man, as temples are considered the home of Gods, and any form of tainting would have been objected to.
Islamic literature provides acceptance towards homosexuality and the union of same-sex couples by liberal interpretation of the various religious texts.[5] Verse 39:55 of the Quran contemplates that the interpretation that “achieves the greatest good” should be adopted out of the numerous interpretations of the text.[6] Thus, this verse provides the basis for an expansive interpretation of the Quranic text. This becomes helpful in understanding Verse 17:84, which provides an acceptance of diversity beyond the shackles of religion, race and gender.[7] This verse encourages us to embrace our true selves and respect the diversity in others despite our fears and misunderstandings. It reminds us that judgement belongs to the Creator and affirms the divine intention for freedom of choice. The practice of being true to ourselves includes the acceptance and the need to embrace one’s true sexual orientation. The verse, while providing for accepting one’s true identity, does not limit the acceptance of one’s identity to one’s predetermined gender roles by society. Thus ensuring tacit acceptance of homosexuality in today’s context. This contention can be further supported by Verse 24:31, which guides women by asking them to lower their gaze and donning an extra garment in public.[8] In this verse, there is an express provision which states that they do not need to draw their veils around a particular segment of people, which includes “men who have no desire for women”. One such category of men would be those who experience no natural desire for women but may have a natural inclination towards other men. Thus, this verse further strengthens the argument of the Quranic acceptance of such categories of men. Through these texts, it becomes evident that religious Islamic literature provided the acceptance of homosexuality. In addition to religious literature, the works of Sufi poets like Bulleh Shah and Sarmand Kashani also contain references to same-sex relationships, which further signify the acceptance of homosexuality.
Not limited to religious scriptures and architecture, there are active references to same-sex unions in the historical context as well. According to historical reports, several monarchs had relationships with males. Two examples of such rulers are Babur, the founder of the Mughal empire, and Mubarak, the son of Alauddin Khilji. Babur even confessed his love for a youngster called Baburi in the Baburnama.[9] Babur claimed to be unable to comprehend his feelings towards Baburi initially. Still, through the later verses he composed in Persian, he describes himself as falling in love with Baburi. This incident highlights that one of the rulers of the most prominent dynasty in India had accepted the connotation of same-sex relationships. This could indirectly point to the view that the public did not disregard such relationships as the ruler is known to set the tone of social acceptance. Indeed, while homosexuality faced disapproval historically, individuals were not marginalised or persecuted solely for their sexual orientation. Queer people enjoyed tolerance from society and were not the target of widespread prejudice.
Thus, it can be observed that historically, same-sex unions were not demonised and considered unnatural. [10] This freedom and right to choose your partner need to be rethought in the 21st century to extend to non-heterosexual couples’ marital rights. Marriage is considered a sacred union based on religious values. As the spiritual scriptures and history are filled with instances of non-heterosexual unions, the argument of religion being unaccepting of same-sex unions is not well founded. Additionally, there is an absence of direct prohibition of same-sex marriage. Marriage is endorsed as a formal acceptance of a relationship. Thus, ensuring the same for same-sex couples would ensure their protection and would be treated at par with other couples when the only difference between them is their sexuality. Religious texts have often been influenced by the cultural and societal norms of when they were written. The opposing views on same-sex relationships in many religions may reflect historical and societal norms rather than divine commandments.
Modern reinterpretations of these texts can consider contemporary understandings of human rights and dignity, leading to more inclusive interpretations. Thus, it is the societal interpretation of these textures which provides a bar on the marital rights of the LGBTQIA+ community. Therefore, it becomes essential to analyse how a bar based on religious values affects the rights given to the community, and the role society and its opinions play in accepting these unions.
Religion v Equality
Judicial interpretation has led to recognising the freedom to choose in marriage as a fundamental element of Article 21 of the Constitution. As extensively propounded across various scholarly articles, Shafin Jahan v. Asokan K.M. has provided the framework that the right to choose one’s partner is an intrinsic part of self-determination and is protected under Article 19 of the Constitution.[11] The ability to freely express one’s sexual orientation is a fundamental right to freedom of expression. While applicable articles may correctly limit specific behaviours that compromise morality and decency,[12] it is essential to understand that homosexuality does not inherently contravene moral standards.[13] Therefore, it is unfair and unjustifiable to restrict one element of the rights guaranteed by Article 19(1)(a) for a specific group while enforcing another aspect of those rights.
In Reema Aggarwal v Anupam, the Supreme Court had beautifully crafted the meaning of marriage.[14] The Court had used the words “union of two souls” and “two spouses” to define marriage.[15] The meaning, as declared in this case, has been used across time now. The position was clarified in the case of A. Jayachandra v Aneel Kaur, where it was held that there might be physical relation for the creation of progeny, etc., but the necessary element is the “union of two souls.” From the words used by the Supreme Court, it can be seen that it has not been clarified if soul means male or female.[16] The Court has been stressing the love and affection between two individuals. The Court’s description of love is above the bounds of gender and thus is non-discriminatory and accepting of the LGBTQIA+ community.
However, while the right to marry is ascribed within the tenets of Article 21, the same is not adhered to due to the omnipresent battle between Articles 14 and 25. In individual spheres, the right to religion and equality are intrinsic to an individual’s life. However, more than once, there have been cases where the right to religion has created discrimination towards an individual or a group of individuals. Those religious practices have been challenged by invoking Art 14 of the Indian Constitution. These cases raise a fundamental query concerning prioritising Fundamental Rights in conflict situations.
Regarding conflicting rights, the State is frequently forced to decide or carefully evaluate opposing claims in light of predetermined standards. States, however, usually take a neutral stance and give religious freedom precedence.[17] A prime example of the same would be the concept of complicity claims. Complicity claims are religious assertions about living in a community with individuals who do not share the claimant’s beliefs and engage in lawful actions that the claimant considers sinful. These claims, being focused on the behaviour of others, raise particular concerns regarding potential harm to third parties. Claims of complicity contend that the freedom of religion includes the right to legal exemptions from statutes that an individual believes force them to engage in the immoral behaviour of others allegedly.[18] Some examples by which people claim their refusal to do certain activities, citing the denunciation of the same by their religion, include a baker who declines to make cakes for same-sex weddings in the USA. This medical practitioner refuses to assist with abortion or a guesthouse that turns away same-sex couples.[19] These examples from foreign countries reiterate that religious connotations often become the guiding force of decisions. These assertions are distinct because they are not only based on religious convictions but also can marginalise and devalue other parties, thus discriminating against them. [20]
Sexuality and gender identity are major battlegrounds for complicity claims, especially when it comes to LGBTQIA+ people’s equal rights.[21] The religious importance of marriage as an institution presents another obstacle to the legal acceptance of same-sex unions. Marriage continues to be seen by many in Indian society as a sacramental union, giving one’s marital status religious connotations.[22] Since the institution of marriage involves the presence of religious representatives such as priests, it further aggravates the stance of complicity claims. In addition, historically, the idea of preserving the “sanctity of marriage” has been used to prohibit unions between people of different ethnic, social, or religious backgrounds.[23] However, society’s gradual acceptance of inter-caste weddings due to compelling legal precedents such as the Lata Singh case[24] denotes a shift away from the idea that marriage is only a religious ritual and may be used for objectives other than those motivated only by religion.[25] In the Lata Singh case, the court had stated that there is no bar to an inter-caste marriage under the Hindu Marriage Act or any other law. This highlights the value of legal precedents to pave the way for society’s acceptance of an act. This is embedded in the fact that the Supreme Court’s verdict, the law of the land, could not be overlooked without facing consequences. This instils restraint and re-examination of the beliefs held by people of a society, which slowly forges the path towards acceptance.
There are indeed personal laws among Hindus and Muslims which dictate the terms of marriage; however, through the overarching Special Marriage Act of 1954, the noose of religious control over marriage is loosened to provide a more secular view as the provisions of the Act do not ascribe to the tenants of religion in validating a marriage.
A threshold that allows religious values to supersede the right to equality and a life free of discrimination must be balanced. This balance in the Indian context is yet to be achieved comprehensively. While no precedents cull out an express demarcation between the intersection of the two rights, some judgements support the contention that a mechanism exists to balance the fundamental right to equality and the right to religion, allowing the right to equality to take precedence in specific instances.
The Supreme Court, in N Adithayan v. Travancore Devaswom Board,[26] Highlighted that religious activities are subject to human rights, dignity, and social equality as the Constitution requires. This move from a strict textualist reading of the right to religious liberty marked a turn toward a more harmonious and balanced interpretation. Similarly, the Bombay High Court decided in Dr Noorjehan Safia Niaz v. State of Maharashtra.[27] That the ban on women entering the Dargah was unconstitutional under Article 14 of the Constitution because it was considered discriminatory. The discrimination was based on clothing restrictions, which are included in the right to religion.
Despite religious opposition in Shayra Bano, the Supreme Court declared triple talaq unconstitutional. While the court’s analysis is contextualised based on religion, the same nevertheless enhanced the right to equality available to women.
In Sabarimala,[28] Justice Chandrachud’s ruling upheld individual dignity, promoted brotherhood among people, and acknowledged the right to religious freedom for individuals and groups. As one of the more expansive freedoms that coexist within the Constitution, he argued for a comprehensive reading of Article 26 in conjunction with other fundamental rights, highlighting the fact that although Article 26 is not expressly subservient to other rights, it must be interpreted in a way that is consistent with them.[29] The Constitution seeks to guarantee liberty, equality, and fraternity by tearing down repressive systems and bringing about a social revolution in India.[30] It promotes brotherhood and individual dignity by recognising religious freedom for people and groups within a society built on citizen equality. Consequently, it is essential to consider the fundamental guarantees of personal dignity and equality in Part III of the Constitution while interpreting Article 26’s commitment to religious liberty and plurality.[31]
While delivering the judgement in Shayra Bano, Justice Nariman held that the legislation was “manifestly arbitrary”.[32] It is pertinent to note that in cases of extreme discrimination, as in Shayra Bano,[33] The judges had applied the right to equality over the right to religion when the act was considered arbitrary. While it is true that Triple Talaq was not considered an essential practice, it becomes an important precedent to analyse how the Court’s power to investigate a religious practice is arbitrary or antithetical to equality. The split verdict of the Supreme Court in the Karnataka Hijab Ban case further reinforces the stance that the Court can override religious sentiments if it considers it essential to ensure the right to equality and life. Hence, from these discussions, it can be claimed that there are precedents that the court can give preference to the right to equality over the right to religion. Thus, a mechanism is available to resolve the conflict between Art 14, the right to equality and Art 25, the right to religion. One method to allow the same is by opening dialogue.
From the above discussion, it becomes evident that precedents provide a mechanism to balance religious claims and equality. However, legal precedents while providing a pathway are not practical in isolation. Society forms the base on which the law operates. Thus, acceptance of society plays an important role. It is often believed that the law follows the society’s lead when creating changes. However, that is only the scenario sometimes. The tenants of the legal underpinnings of the social structure of acceptance of law are essential to analyse comprehensively how law may act s an agent of change. Thus, the law can act as the catalyst which changes the societal mindset. The next part of this blog, through studies, aims to investigate how legal precedents encourage acceptance among the society of a new advocacy sphere.
Society and Law
In the study, The Anticipated Impact of LGBTQIA+ Marriage Equality Legislation on Indian Society and Mental Health, conducted, it was found that granting legal rights would ensure better well-being, legal safety and access to legal rights to same-sex couples.[34] The study had a specific focus attributed to societal impact. One of the participants in the survey stated that the legalisation of marriage would enable far greater societal acceptance, including familial acceptance.[35] According to the study result, the participants perceived that legalisation of marriage would come with the benefits of (less) stigma, as voted by 18% of the study population, (less) discrimination by 9% of the study population, etc.[36] It logically flows from this premise that when certain legal rights are bestowed, society needs to abide by those rules protecting them. Hence, in the scenario where legal recognition is given to same-sex couples, it would ultimately result in society, whether grudgingly or willingly, accepting same-sex marriages.
Many studies prove and accept this above-contended view, including Do Laws Shape Attitudes? Evidence from Same-Sex Relationship Recognition Policies in Europe.[37] The study was focused on the period of 2002-2016. According to the survey conducted they state that with the enforcement of new laws and policies greatly influenced the social attitude towards sexual minorities.[38] Hence, it was concluded in the study that even though laws and policies reflect the attitude of the society, there is strong proof that laws help shape the attitude of society as well.[39] The same conclusion has been drawn in the paper Norms and Reform: Legalising Homosexuality Improves Attitudes.[40] The paper further throws light on the trend of criminalisation of homosexuality in British colonies.[41] It is seen that 56% of countries which criminalised homosexuality are former British colonies, and 71% of the previously colonised countries criminalised homosexuality.[42] Justice DY Chandrachud had, in the hearing of the petitions, stated that India was “inclusive” historically, but the colonial attitude has led to the exclusion of queer people.[43] In terms of output, law is frequently a product of mobilisation, enforced by legal and legislative measures.[44] Law may be considered a tool to promote objectives through legal action and other legal methodologies.[45] Hence, laws can create an atmosphere of acceptance and recognition and provide a method to change societal policies through policies.
Thus, society is shaped by the laws which govern it. People are bound to follow the law of the land. Therefore, a law which provides the acceptance of marital status of LGBTQIA+ people will help by shaping the perspective of the society. It would send the symbol to the country’s highest authority and judicial minds to consider these forms of marriage acceptable. This might persuade them to accept the marital status of the LGBTQIA+.
Conclusion
“A government may define marriage but it cannot tell people whom to love, neither can it exert exclusive control over marriage nor people’s understanding of marriage.”[46]
According to William Eskridge, marriage is a constructed institution and not an institution discovered by societies.[47] Marriage, even in the 21st century, is considered to be a union of heterosexual couples. The government’s claim regarding the requirement of societal recognition to achieve peaceful legal recognition is defeated by analysing how law changes society. Thus, by legalising same-sex marriage, the court would be ensuring the protection of the LGBTQIA+ community. Understanding the sociological perspective of how a society is shaped through law is essential, especially in the context of same-sex marriage. Their acceptance by law provides them protection, and society might begrudgingly agree to the same, but the acceptance will gradually enhance the societal standards of law. The Court has the power to do right by the wronged, but ascribing to social norms to pass a judgment which would end discrimination is not prudent.
Thus, via the review petition filed in the Supriyo case, the court has the power to correct their judgement and change how the acceptance of legal position is accepted by understanding the depths of how law and society work in tandem and a fit-size approach to all does not necessarily work as sometimes the opposite is more beneficial in some instances.
The author, Bratati Lahiri, is an undergraduate law student at the West Bengal National University of Juridical Sciences (NUJS), Kolkata.
[1] Supriyo v Union of India 2023 LiveLaw (SC) 900
[2] The Hindu, Supreme Court transfers to itself petitions seeking legal recognition of same sex marriage, January 06, 2023, available at https://www.thehindu.com/news/national/sc-transfers-to-itself-all-pleas-pending-before-different-high-courts-on-recognition-of-same-sex-marriages/article66345499.ece (Last visited on March 18, 2024).
[3] 3 Saif Rasul Khan, Same-Sex Relationships And Marriage In India: The Path Forward, Legalisation Of Same-Sex Marriage A Global Perspective International Conference Proceedings. (2021)
[4] Id.
[5] Muhsin Hendricks, Islamic Texts: A Source for Acceptance of Queer Individuals into Mainstream Muslim Society, Vol(5) The Equal Rights Review, (2010)
[6] The Quran, 39:55
[7] The Quran, 17:84
[8] The Quran, 24:31
[9] The Print, Babur fell hopelessly in love with a boy called Baburi. Roamed love-sick like a madman, Feb 23, 2024, available athttps://theprint.in/pageturner/excerpt/babur-fell-hopelessly-in-love-with-a-boy-called-baburi-roamed-love-sick-like-a-madman/1976258/
[10] Lewis Davis, On the Origin of Religious Values, SSRN Electronic Journal, DOI:10.2139/ssrn.2991191 (2017)
[11] Shafin Jahan v. Asokan K.M, (2018) 16 SCC 368
[12] The Constitution of India, 1950, Arts. 19(2)
[13] Navtej Singh Johar and Ors v Union of India and Ors. ((2017) 9 SCC 1)
[14] Reema Aggarwal v Anupam, (2004) 3 SCC 199
[15] A. Jayachandra v Aneel Kaur, (2005) 2 SCC 22
[16] Romit Bhattacharjee, Validity of Transsexual Marriages in India, 5.1 NLUO SLJ (2020) 89 (2020)
[17] Sandra Fredman, Tolerating the Intolerant: Religious Freedom, Complicity, and the Right to Equality, Oxford Journal of Law and Religion, Volume 9, Issue 2, June 2020, Pages 305–328
[18] D Nejaime and R Siegel, ‘Conscience Wars: Complicity Based Conscience Claims in Religion and Politics ‘ (2015) 124 Yale L.J. 2516
[19] Fredman, supra note 18
[20] Nejaime & Siegel, supra note 19
[21] Shivam Garg,Legal Recognition of Same-Sex Marriage Rights in India, CNLU LJ (9) [2020] 158
[22] Id.
[23] Astha and Aryaman, Is Decriminalisation of Homosexuality Enough?, 2020 SCC OnLine Blog OpEd 132
[24] Lata Singh vs State Of U.P. & Another 2006 (5) SCC 475
[25] Shivam Garg,Legal Recognition of Same-Sex Marriage Rights in India, CNLU LJ (9) [2020] 158
[26] N Adithayan v Travancore Devaswom Board, (2002) 8 SCC 106.
[27] Dr Noorjehan Safia Niaz v. State of Maharashtra, 2016 SCC OnLine Bom 5394…
[28] Shayara Bano vs. Union of India [(2017) 9 SCC 1]
[29] Shubhangi Maheshwari and Shrey Nautiyal, Interplay Of The Right To Religious Freedom With Other Fundamental Rights In The Indian Constitution: A Constructivist Coherence Analysis, The Indian Journal of Constitutional Law Vol 10. (2021)
[30] Id.
[31] Id.
[32] Shayara Bano vs. Union of India [(2017) 9 SCC 1]
[33] Id.
[34] Sanjana Mishra, Soumya Jagatdeb, Priyanka Mittal, Thwisha Bajpai, Megha Sharda & Priyanka Padhya, The Anticipated Impact of LGBTQIA+ Marriage Equality Legislation on Indian Society and Mental Health , https://doi.org/10.31235/osf.io/uxkha
[35] Id
[36] Id
[37] Cevat G. Aksoy, Christopher S. Carpenter, Ralph De Haas & Kevin Tran , Do Laws Shape Attitudes? Evidence from Same-Sex Relationship Recognition Policies in Europe, IZA DP No. 11743
[38] Id
[39] Id
[40] Charles Kenny & Dev Patel, Norms and Reform: Legalizing Homosexuality Improves Attitudes, Center for Global Development Working Paper No. 465, October 13, 2017, available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3062911 (Last visited on March 18, 2024).
[41] Id
[42] Id
[43] Live Law, Marriage Equality Petitions | Indian Culture Extraordinarily Inclusive, British Victorian Morality Code Was Imposed On Us: CJI DY Chandrachud, April 27, 2023, available at https://www.livelaw.in/top-stories/marriage-equality-petitions-indian-culture-extraordinarily-inclusive-british-victorian-morality-code-was-imposed-on-us-cji-dy-chandrachud-227381 (Last visited on March 18, 2024).
[44] Scott L. Cummings, Empirical Studies Of Law And Social Change: What Is The Field? What Are The Questions?, 2013 Wisconsin Law Review 171 (2013)
[45] Id
[46] Ruth, supra note 7
[47] W.N. Eskridge Jnr, A History of Same-Sex Marriage, 79 Va L Rev 1419, at 1485, (1993)
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