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India's Legal Setback for Same-Sex Marriages

Event Op-Ed Feature Report, India Same Sex Union Decision

Around the world, the LGBTQIA+ group has chosen to advocate for their rights and freedom in different social places. Countries worldwide have been making major front steps into furthering LGBTQIA+ people’s stance in society. But the LGBTQ people of India suffer from a huge setback set in place by India’s Supreme Court.

On Tuesday, India's Supreme Court refused to legalize same-sex marriage, disappointing millions of LGBTQ+ couples and activists. This was quite devastating for the people of India who have been making efforts for progress for years now through nationwide protests and appeals for the change of laws. The Supreme Court stated that it was up to the Parliament to make the laws and their job to enforce them.

Aakar Patel, chair of the board at Amnesty International India, said, “This was a historic missed opportunity for the Supreme Court of India to herald in a new era in what has been a long fight for equal rights of LGBTI people. All people, regardless of their sexual orientation or gender identity, should be able to enjoy the full range of human rights, including the right to marry,”.

"I am disappointed but not entirely surprised. Public opinion is veering in favor of marriage equality but is deeply divided, as are all political parties. India is, as far as I know, the only country in which the petitioners for marriage equality include people from the extreme right to the extreme left and everything in between," Prof Vanita said.

History of Pride Rights in India

The First Pride Parade in India was held in Ahmedabad, and it is where the campaign for recognition of pride rights in India began. In 1999, things were very different since they referred to the march as a "friendship walk" instead of a "pride parade" to avoid any issues with onlookers because homosexuality is still frowned upon in India. In 1999, gay life was primarily clandestine and homosexuality was still illegal in the nation (a Victorian vestige in the Indian Penal Code), albeit a few organizations supporting the community had started in a few towns. However, the group of activists persisted, and on 2 July 1999, Pawan Dhall, a queer rights advocate from Kolkata, was one among the 15 people arrested. This marked the first battle for LGBTQ rights by the people of India and initiated a series of battles after that.

The Indian Penal Code's Section 377, which criminalizes homosexuality, was enacted in 1861, under British administration in India. After years of fruitless attempts, the High Court of New Delhi decriminalized homosexuality among consenting adults in 2009. However, the decision was later overturned by the nation's Supreme Court in 2012 on pleas from religious organizations. However, the Supreme Court of India decriminalized Section 377 of the IPC in 2018 and authorized private gay sex between consenting adults.

Hindu Scriptures and The Third Gender Recognition

What's actually surprising is that even if India’s society regards transgender and homosexuality as taboo, ancient Hindu scriptures actually recognize the third gender. There are certain characters in the Mahabharata who, according to some versions of the epic, change genders, such as Shikhandi, who is sometimes said to be born as a female but identifies as male and eventually marries a woman. The Kama Sutra, a Sanskrit text on human sexual behavior, uses the term tritiya-prakriti to define men with homosexual desires and describes their practices in great detail. Likewise, the Kama Sutra describes lesbians (svairini, who engage in aggressive lovemaking with other women), bisexuals (referred to as kami or paksha), and transgender and intersex people.

This third gender is called the hijra, which played a vital part of society in the ancient days. Hijra are expected to perform dances, songs, and blessings at both births and weddings of Hindus. To many Hindus, a hijra’s blessings of a baby will confer fertility, prosperity, and long life on the child. However, hijras are not all Hindu themselves. Many are Muslim and a few are Christian. In fact, some hijras follow the beliefs and practices of both Hinduism and Islam.


Despite this week's ruling by the Supreme Court, India's 2.5 million LGBTQ citizens have made the decision not to give up. The people may have to fight a lengthy battle to get the respect and approval of society and the government, but they never give up in their pursuit of the equality they rightfully deserve.

Aarya Patil

Junior Correspondent


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