Taiwan, 1st Asian Country to Legalize Gay Marriage, Shouldn’t India Follow Suit?

Written by Saisha Bacha | Published on: May 26, 2017
In a landmark judgement delivered on May 23, judges from Taiwan's Highest Court ruled in favour of Chi Chia-wei, legalizing gay marriage, making the small, island nation the first in Asia and setting a precedent for other Asian countries.

gay marriage

The court has given the country's parliament two years to amend existing laws or create new ones to ensure equal treatment of individuals with respect to marriage laws.

Back home in India, the Delhi High Court, in the case of Naz Foundation V. Government of NCT Of Delhi And Others, had ruled in favour of the LGBT community in 2009. The Court had asked the Indian parliament to amend laws according to the recommendations of the 172nd Law Commission of India Report. The report may be read here.Sadly, little has been done in this regard. The LGBT community still suffers from exploitation, discrimination and denunciation. Hopefully, this progressive judgement passed by the Taiwan High Court will motivate the Indian law makers to finally frame laws to protect the preferences and rights of its diverse populace.

Just like India, in Taiwan the fight for rights of the LGBT community, is not recent. The issue of same-sex marriage has been a source of contention for decades in Taiwan. The key plaintiff, Chi Chia-wei, a gay-rights activist, has been fighting for gay rights since the 1980s and first sought a gay marriage license 16 years ago according to Focus Taiwan Reports. Chi Chia-wei’s suit claims that the prohibition against same-sex marriage violates the rights guaranteed in the Constitution by Article 7 which declares that all citizens, irrespective of sex, religion, ethnic origin, class or party affiliation, to be equal before the law, and Article 22, which states that all other freedoms and rights of the public that are not detrimental to social order or public welfare are guaranteed under the Constitution.

The obiter dicta of the Grand Justices reflect their liberal, reformist outlook.The Justices called sexual orientation an "immutable characteristic that is resistant to change." This, in our opinion is the most logical definition of the sexuality of an individual, knowing that it is internal and natural and not an externally developed sentiment. The court further said that, “Allowing single people to have the autonomy to decide whether to marry and whom to marry, is vital to the sound development of personality and safeguarding of human dignity, and therefore is a fundamental right."

The alliance of Taiwan Religious Groups for the Protection of the Family and representatives from Buddhist, Taoist, Christian and Lamaist groups, rallied against this decision of the Court. However, it was the key campaign issue for President Tsai Ing-wen, who took office one year ago, and the legislature has been weighing a change to Taiwan's Civil Code.

Taiwan will now join 20 other countries from across the world which have legalised same-sex marriage. Netherlands was the first to legalise same-sex marriage(2000), followed by Belgium (2003), Spain and Canada (2005), Finland, Ireland and United States (2015) and now Taiwan (2017). India, certainly has a lot learn from this international reform. The first step in the right direction was taken by the Delhi High Court in 2009 as discussed above, but the Supreme Court took a U-turn in 2013, when it overruled the order of the Delhi High Court.

The Supreme Court Judgement may be read here.

What the Indian diaspora fails to understand is that Homosexuality is innate to the Indian culture and has been a part of our multihued heritage. Ancient texts such as Shrutis and Smritis make a mention of the existence of Homosexuals and Trans genders. The Kamasutra, another ancient Indian text makes explicit mention and portrayal of various relations existing between individuals of different as well as same genders. Sculptures and paintings in the Khajurao Temple, Ajanta and Ellora caves are evidence of the deeply rooted connection of homosexuality and Indian heritage.

Quite contrary to this, the ‘progressive’, ‘modern’, Indian society of today considers acts of homosexuals and transgenders as taboo. Accepting the Tibetans and not the Transgenders, allowing communal movements and not LGBT movements, criminalising homosexuality and not marital rape; isn’t this a reflection of the hypocrisy of the Indian polity?

The percentage of the population strongly preferring same-sex, sexual acts and relationships, and thus identifying as lesbian, gay or bisexual, is thought to be somewhere between 1% (a figure generally considered too low) and 10% (a figure generally considered too high). In India 25 lakh individuals have been identified as lesbian, gay or bisexual, as per a report submitted to the Supreme Court in 2012. The irony is, these are only the few who have come out of the closet. The rest, perhaps the majority, still fear the stigma attached hence, do not reveal their sexual orientation and identity. The Indian laws lag behind when compared with the rest of the world as they fail to identify, accept and protect the members of the community.

On the contrary, Section 377 of the Indian Penal Code, 1860 criminalises homosexuality primarily on the basis of the form of sexual intercourse. This is the biggest obstacle in the path to equality. The Constitution of India - the supreme law of the land, protects and promotes diversity, ensures an egalitarian society where freedom should no longer be a privilege. Although Part III of the Constitution provides certain rights to the citizens, it only covers those citizens who form part of the ‘popular morality’.  The LGBT community does not form part of this ‘popular morality’ and hence is neglected. It is the right of each member of the LGBT community to be treated equally like other citizens, to live with dignity as enshrined in A 15 (1), (2), Part III, Constitution of India. As given, “the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”

It is important that the ground of ‘sex’ must include the sexual orientation of the individuals along with the ‘gender’ as these develop over time, differently for every individual depending on the genetical make up. Further, A 19, Part III, Constitution of India, provides certain rights and freedoms to individuals which we are well aware of. Of course, these rights are subject to reasonable restrictions in the interest of the sovereignty and integrity of India and maintenance of public order. The LGBTQ communityis not harming the integrity and sovereignty of India and clearly forms an integral part of our society. At the same time, we know, it may be against the ‘popular morality’ but is not against ‘constitutional morality’ or public order. Then why are those belonging to the LGBT community prevented from taking an apartment on rent or buying a house or property? Why are the queer individuals discriminated against on public forums? Why is it difficult for a transgender to get a white-collar job? Why is a homosexual harassed, treated as an inferior being, abused, exploited, stigmatized? Clearly because the Constitutional interpretations have not expanded so as to include them.

As citizens of India, can’t lesbians, gays, transgenders and bisexuals live their lives with as much freedom as the rest of the Indians? Provisions need to be made to enable these individuals to acquire property, reside in a house, work freely and violations of the same need to be made punishable. A 21, Part III, Constitution of India, states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”  Though not explicitly, the A 21, does provide Right to Privacy to the citizens of India. Thus, what individuals do in private with consent should not be a crime. If the state does not involve itself in consensual sexual acts of heterosexuals, why should it criminalise consensual sexual acts of homosexuals? S 377, Indian Penal Code, 1860, is a draconian law of the British colonial powers, with a misconception that homosexuals indulge in anal sex which amounts to sodomy. The law fails to take into account, the feeling of mutual love, care and security that partners provide to each other. Thus, if two men find happiness in cohabiting, they should be allowed to do so and S 377 should be amended. A 14, Part III, Constitution of India, provides, “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”  This provision is not reflected in the current scenario. Evidence of mass human rights violations of members of the homosexual community is obvious, numerous cases have also been filed. However, little has been done by the police and other authorities to provide protection to the LGBT community. The courts still do not rule in the community’s favour. Thus, the question remains, are the doors of the Courts really open for the LGBT community in India?

Our fight here is not just to decriminalise sexual acts of homosexuals but to ensure that they are provided with the same rights as other citizens of India. We need to fight for their right to marriage, right to procreate or have children, right to work without discrimination, right to consent any and all acts done with partners, right to seek justice in the formal court of law and finally, right to be included and accepted as part of Indian society.

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