Time to decriminalise same-sex relationship

Same-sex relationships, recently termed gay, are a major topic in the West. In June 2015, the US Supreme Court upheld the validity of same-sex marriage by a narrow 5-4 majority. The US decision in Obergefell vs Hodges in 2015 comes 10 years after Canada enacted the Civil Marriage Act in 2005, legalising gay marriages.

The Canadian legislation was preceded by a ruling of the Supreme Court of Canada in 1999 in M vs H (the names of parties were not revealed, to protect privacy) that persons living in same-sex relationships had the same rights as couples who belonged to different sexes. Here again, affirmation of equality for American gay couples came more recently, from a US Supreme Court ruling rendered in 2013.

To be sure, homosexuality is a sensitive subject in contemporary India as well and the risk of social stigma, considerable. The Indian Penal Code criminalises homosexuality as an “unnatural offence.” The law, a product of the British raj, was in line with British law and reflected the biblical injunction against sodomy. But there is no evidence of widespread enforcement of the law by the police in India. 

Recently an effort was made, through a public interest case, to decriminalise homosexuality. But in 2013 the Supreme Court of India declined to interfere stating that it was for Parliament to decide on the issue. The judgment triggered protests by gay activists, indicating great readiness to come out in the open.

Harking back longer, however, there is evidence in Indian religious traditions and mythology that the delineation between the sexes was less strict or rigid. On the converse, there was greater recognition of fluidity and the complementarity between male and female. This was symbolised in the conception of Eswara, the all-pervasive lord, as “ardhanari” or half-female. The effort was to synthesise the sexes, rather than stress the distinctions.

Indian mythology includes references to same-sex relationships and transgender. According to tradition, Ayyappan, the deity at the Sabarimala temple in Kerala, was sired by copulation between two male gods, Siva and Vishnu. In the grand epic Mahabharatha, Shikandi, who killed Bhishma, changed sex from female to male. In present India, transgender persons are numerous and a visible presence in several places.

The story of same-sex relationships in the west is more complex, with roots in religion, societal values, and the role of law administered by governments. As noted, the bible is the source of criminality of homosexuality. Not only did the law forbid homosexuality, the criminal injunction was actively enforced. 

In Britain, the great litterateur Oscar Wilde (1854-1900) was sentenced to imprisonment in the 1890s for the offence. Alan Turing (1912-54), a pioneering British computer scientist, was prosecuted in 1952 for homosexuality. He opted for the cruel punishment of chemical castration instead of imprisonment. Turing died two years later, all of 42 years. The laws and their enforcement were no different in the US and Canada. Such is the history of homosexuality in this part of the world.

From early 20th century, more so after World War II, the winds of liberalism and tolerance began to blow in the west. As the century progressed, women were granted voting rights and blacks in the US gained civil rights, including voting rights. 

The developments happened amidst profound sociocultural changes – from the rise of the feminist movement to traditional dark suits and ties giving way to more relaxed attire for men and the influence of icons such as the Beatles and Elvis Presley who represented a sense of rebellion against prevailing orthodoxies and social conservatism. As liberalism strode forward, gay rights inevitably marched alongside. Homosexuality was decriminalised in Britain and Canada in the 1960s.

Speaking for the law, the stalwart Canadian leader Pierre Trudeau (1919-2000), who was then Justice Minister, famously stated that the government should have no place in people’s bedrooms. In the US, decriminalisation began in the 1960s with Illinois. Several other states followed. The process was completed in 2003 when the US Supreme Court held in a Texas case that criminalising gay sex among consenting adults was unconstitutional. As an aside, Queen Elizabeth granted Alan Turing a posthumous pardon in 2013.

Point of difference

Decriminalisation and the weakening of social stigma would be inadequate in the more regimented and orderly societies in western countries. This is a point of difference. An insight Rabindranath Tagore (1861-1941) provided was that historically in India, the government was not a central institution in the civil society. In more government-centric societies, the law and government policy shape human life in significant ways.

The difference is apparent in marriages. In almost all marriages in India, religious traditions and societal practice are the dominant influences. The government or law has little role in them. It is only a small minority that seek registration with a government official under the Special Marriage Act. The chanting at traditional marriages is also significant. It invokes the gods to bless the newly-married. This contrasts with the US where it is a common practice for priests to pronounce the couple as husband and wife, in exercise of the powers conferred by the relevant state – for example, California or New York.

Marriage, as an institution, generally carries significant emotional value for individuals and families. Lifetime commitment and stability of relationships are understood as implicit. These are among the factors that spurred the campaign for legalising gay marriage. But marriage is also important for other reasons, such as entitlement to employment and tax benefits available only “families” (which requires a legally valid marriage), succession to property and even things like visitation rights in hospitals. 

The issue, therefore, has significant practical value for gay citizens, apart from the emotional importance of the commitment and stability that are generally identified with marriages.

(The writer is Associate Professor, Faculty of Law, University of Ottawa, Canada)