A five-judge Supreme Court constitution bench is scheduled to hear from April 18 a batch of petitions seeking legal validation of same-sex marriages in the country.
As of April 2023, nearly 15 batches of petitions seeking legal recognition for same-sex marriage have been submitted to the Supreme Court of India. These petitions are awaiting a hearing on April 18th, 2023, before a five-judge bench, which will be live-streamed. This development is crucial as the LGBT+ community has been fighting for basic civil rights in Indian courts and society for over two decades.
The first public interest litigation (PIL) was filed by The Naz Foundation, a queer rights NGO, in the Delhi High Court in 2001, challenging the constitutionality of Section 377 of the Indian Penal Code (IPC) and calling for the decriminalization of homosexuality.
After several attempts, the Supreme Court finally ruled in 2018, in the case of Navtej Singh Johar v. Union of India (Navtej), that those parts of IPC Section 377 that prohibited private and consensual same-sex relationships were unconstitutional and needed to be struck down.
In doing so, the Supreme Court overturned its previous 2013 ruling in Suresh Kumar Koushal v. Naz Foundation (Koushal), which erroneously upheld the homosexuality ban in Section 377 of the IPC.
In 2013, the petitioner in the Koushal case, Suresh Kumar Koushal, ran the Tarunaditya Astrological Center in New Delhi’s Preet Vihar and identified as a devout Hindu. After the Delhi High Court decriminalized homosexuality in 2009, Koushal objected to the fact that gay couples were visiting temples and gurudwaras for marriages.
He considered homosexuality a religious and moral issue and strongly opposed it along with several organizations such as the All-India Muslim Personal Law Board, Trust God Missionaries, Apostolic Churches Alliance, and Krantikari Manuwadi Morcha. In a rare display of unity, Hindu, Muslim, and Christian bodies came together to oppose the decriminalization of homosexuality.
During the Koushal case, the counsel for Trust God Missionaries argued before the Supreme Court that legalizing homosexuality was akin to the “abuse of private organs”. Quoting a Sanskrit phrase which translates to “you are dust and go back to dust,” their counsel contended that legalization would “tempt young persons towards homosexual activities.”
In 2018, speaking to the media, Zafaryab Jilani, the secretary of the Muslim Personal Law Board, stated that “We support Section 377. Homosexuality is injurious to human health; it should remain a crime.”
Ultimately, the petitioners in the Koushal case prevailed, and Section 377 of the Indian Penal Code remained in effect.
The unity between Hindu, Muslim, and Christian groups in the Koushal case was concerning and unfortunate. It demonstrated how different religious groups in India, who otherwise share massive differences on a range of issues, could come together for a discriminatory cause such as criminalizing homosexuality.
For example, these groups hold divergent views on the construction of a Hindu temple at the site of the Babri Masjid in Ayodhya, the cow protection movement, and the implementation of a uniform civil code in India. This underscores the need for greater understanding and acceptance of people with different sexual orientations within religious communities, as part of a broader effort towards promoting diversity and inclusivity.
During the Navtej hearings between 2016 and 2018, two Christian groups – The Apostolic Alliance of Churches and the Utkal Christian Council filed submissions opposing the decriminalization of Section 377.
They argued that decriminalization would “open up a floodgate of social issues that the legislative domain is unable to accommodate”, such as the issue of same-sex marriage, which they characterized as a “social experiment with unpredictable outcomes.” They also stated that decriminalization would impinge on their right to religious freedom, as the Holy Bible purportedly professes love for homosexuals as a people but condemns homosexuality as a “lifestyle”.
In this case, however, the petitioners prevailed and parts of Section 377 of the IPC that criminalized homosexuality were struck down. It’s fascinating that the issue of same-sex marriage was raised in the submissions of both the Apostolic Alliance of Churches and the Utkal Christian Council, given that it is the focus of the current debate
History seems to be repeating itself, but in a more intense way than in 2013, with Jain and Sikh leaders this time joining forces with Christian and Muslim leaders, along with the Rashtriya Swayamsevak Sangh (RSS) in opposing same-sex marriage. The Jamaat-e-Islami Hind, Jamiat Ulama-I-Hind, the Communion of Churches, and the Akal Takht, along with representatives of the Ajmer Dargah and Jain gurus, have claimed that same-sex marriage goes against the “natural” family order and scriptural teachings.
Interestingly, the RSS’s current opposition to same-sex marriage marks a significant departure from its earlier stance, which not only supported the Supreme Court verdict decriminalizing homosexuality but also had its current Sarsanghchalak, Mohan Bhagwat, recently discussing scriptural support for same-sex relationships. He referenced the little-known story of Hansa and Dimbhaka, the allegedly gay generals of Jarasandh found in the epic Mahabharat – a statement that led right-wing author, Sandeep Deo to file a criminal complaint against him, possibly causing the RSS to eventually fall back on its traditional anti-gay stance.
In its plea before the Supreme Court, the Jamiat Ulama-I-Hind, an organization purportedly focused on “securing and safeguarding the civil, religious, cultural, and educational rights of Muslims,” argued that LGBTQIA+ rights should not be allowed space in the religiously governed personal laws of communities.
Meanwhile, in 2009, Jain monk Acharya Lokesh Muniji had expressed that homosexuality was “against nature”. He has continued to maintain this view, arguing that in Jainism, marriage is the foundation for reproduction and the extension of the family tree, something that is “not possible in a same-sex marital alliance.”
Beyond propagating fallacies that homosexuality is “unnatural” or “abnormal” (claims that were laid to rest in Navtej), what these religious leaders fail to grasp is the existence of people within their own religious communities who are both homosexual and longing for love and acceptance. By prioritizing their own narrow-minded and illiberal interpretation of religious texts over the well-being of members of their own community members, each of these religious leaders, in union, are responsible for the continued ostracization and discrimination of an already marginalized group extra-vulnerable to hate-crimes, abandonment, and social stigma.
In reality, love and acceptance are universal human needs that should not be denied to anyone based on social markers, including sexual orientation or gender identity. By coming together to support the gay community’s call for equal rights these religious leaders had an opportunity to show compassion and inclusivity, regardless of their differences. Sadly, they failed this test.
The Quran, the central religious text of Islam, has been subject to various interpretations regarding its stance on same-sex marriage. Some Muslim scholars argue that the Quran emphasizes the importance of love and respect for all people, and that these values should extend to the LGBTQ+ community, including in cases of forming same-sex unions.
One such scholar is Scott Kugle, who authored “Homosexuality in Islam: Critical Reflection on Gay, Lesbian and Transgender Muslims.” Kugle argues that the Quranic teachings on love and compassion can be extended to include the LGBTQ+ community, and that same-sex love and can be seen as part of God’s creation.
In the Hindu tradition, the Kama Sutra acknowledges that people have different sexual preferences and suggests that love should be the foundation of any sexual relationship.
In Buddhism, the Dhammapada, a collection of the Buddha’s teachings, emphasizes the importance of loving kindness and compassion towards all beings. This is echoed in the Dalai Lama’s vocal support of LGBTQ+ rights, including same-sex marriage. He has stated that individuals should be free to pursue their own happiness.
In the Christian tradition too, some scholars argue that there are passages in the Bible that support same-sex relationships. For example, in the book of Ruth, the relationship between Ruth and Naomi has been interpreted as a same-sex relationship by some.
While religious leaders may themselves disagree on the issue of homosexuality and same-sex marriage, it is important to remember that individuals and communities should have the agency to interpret and apply these teachings in a way that is inclusive and accepting of everyone, especially the most vulnerable among them.
As society progresses towards greater acceptance and inclusivity, it is important for religious institutions to also adapt and evolve their teachings to better serve their communities, including those who identify as LGBTQ+.
Writer is Communications Manager at Nyaaya, the Vidhi Centre for Legal Policy. Views are Personal.