Introduction:
Same-sex marriage is also considered homosexual marriage, where both individuals belonging to the same sex marry each other out of love and affection as a marriage between men and women occurs. In the 21st Century, same-sex marriage is still considered taboo in many of the developing countries including the Indian society. According to the reports, 133 countries decriminalized homosexuality but out of these countries only 33 countries considered same-sex marriage as legal.[1]. People who are engaged in same-sex marriage are criticized by the society who used to look down upon them in the tier 3 cities of the Indian Subcontinent and many other developing nations. But, still, many countries accept same-sex marriage and consider it to be legal.
Jeremy Bentham is one of the most famous jurists, western philosophers & political reformers from the 18th Century. He was the first political and juristic thinker who talked about “Utilitarianism”. “Utilitarianism” means “greatest happiness is of the greatest number”. [2] That means the government is unable to satisfy everyone but if the majority is satisfied, the happiness is meant to be achieved. In his work “A Fragment on Government” [3]– he first talked about the concept of “utility”. Also in his book “An Introduction to the Principles of Morals and Legislation”[4] Where he talked about criminal laws as well as the concept of utilitarianism. There is a huge debate on same-sex marriage in the contemporary world, with the context of Bentham’s Utilitarianism this paper will try to delve into the legal position of same-sex marriage.
Analysis:
Analysis of same-sex marriage from the perspective of Jeremy Bentham:
In the 21st century, same-sex marriage is considered to be taboo in many countries where as many countries have legalized it like America. Same-sex marriage is homosexual marriage, according to the dictionary “a romantic or sexual attraction or behavior between members of the same sex or gender”. [5] It is never supported by the churches and according to the viewpoint of Christian ethics , they also rejected the concept of same-sex marriages.
Jeremy Bentham introduced the concept of “Utilitarianism”.This concept is opposite to what the churches and Christian ethics talk of. Utilitarianism talks about the happiness of the greatest number, it talks about how a state does something for the happiness of the people and if the majority of the people are happy and few are dissatisfied, the concept of utilitarianism is achieved. A state cannot make every individual happy, it can do or bring laws and make policies that can make the majority of the people happy, there will always be people present complaining about the laws and policies and will be dissatisfied. If we talk about the perspective of same-sex marriage from the viewpoint of utilitarianism, we need to decide how we going to look upon the subject, or how we will treat the subject. So, to decide whether same-sex marriage is moral or immoral or right or wrong, we need to answer certain questions of Bentham’s concept of Utilitarianism.
According to the concept of Bentham’s Utilitarianism, same-sex marriage is a moral conduct of human behaviour. Consent plays a big role in any sexual activity between two individuals, same in same-sex marriage. Bentham’s felicific calculus provides a framework of utilitarianism.[6] This framework is used to measure the happiness of an individual after they do a particular act. So, this framework of Bentham helps to decide whether the action of the individual is right or wrong. According to the Bentham’s Felicific Calculus:[7]
- It can measure the feeling of positiveness after doing the act.
- It focused on the duration of happiness achieved by the individual, and how long the individual is happy by his decision of doing the act.
- The individual should be aware of the consequences that even if he did not achieve happiness, there are a risk involved, and still, he decided to engage in the act.
- There must be proximity of happiness by such an act.
- It also talks about if the individual is doing such an act and whether he is happy, whether he will be happy in the future or not.
- The action of the individual may be pure and positive but the repercussions from the society can be negative.
- The act of an individual affects the other individuals in the society.
According to human rights, the right to life also includes the right to marry by choosing his / her life partner. Just because we have a concept that only between two opposite gender marriage can be conducted, that doesn’t mean it’s right. Everything we know & accept, there will be something unknown, unaccepted by us but still it will be there. The word “love” is not defined for any particular one, it’s abstract and love can happen between any individual, we can’t restrict one’s feelings only as we disagree with the concept of the same sex. According to the researcher’s opinion on the felicific Calculus, the couple can be happy throughout their lives after marrying the one whom they want to be with. They had to go through so many difficulties to marry each other, so by marrying each other their pleasure and satisfaction will be much higher.
Jeremy Bentham, in his book “An Introduction to the Principles of Morals and Legislation (1781)”[8] He mentioned that the mankind of human beings is divided into two concepts – pleasure and pain. Based on these two actions, humans decide what they want to do. According to Bentham, any action done by an individual whether it is right or wrong decided by the concept of pleasure and pain theory. He argues that the government should come up with laws that can maximize the happiness of the individuals. He points out that law is made to maximize the pleasure among the people and reduce the pain of the individuals, “the greatest good for the greatest number”. [9]
He argues that the well-being of a community feels pleasure by a law or by an act which means it is the well-being of the whole society. He wants to say that there is if we are not able to understand what is good for an individual then it is baseless to think about what is good for society. First, we need to understand what is good for the person, if the person is not good society can’t be good at being good, as the society comprises the individuals. The society’s happiness is equal to the individual’s happiness. So, same-sex marriage should be considered based on Bentham’s morality and law-making.
In the 18th century, the same-sex marriage was not legal. Society was not aware of the different feelings of different individuals. Also that time the churches opposed the concept of same-sex marriage. In that time Bentham, in his work “Offences against One’s Self” argued for the liberalization of laws prohibiting homosexual sex.[10]He never published this essay; this essay was only published after he died in the year 1931. But in the 21st century, if he was present, he would publish this work without any fear of challenging public morality because he would have freedom of speech and expression. Further, he would state that according to him same-sex marriage is not unnatural, love is very natural and it is abstract and can be between two individuals at any time, in any manner. Same-sex marriage is basically “irregularities of the venereal appetite”.[11]
Same-Sex Marriage in the Context of Indian Society:
In India, before 2018, homosexuality was a criminal act under section 377 IPC. This was made by the Britishers in the year 1860 when the movement of LGBTQ+ movement began in India. Since India gained its independence in 1947, this law exploited many men and women who claimed to be LGBTQ, which challenges the very essence of the right to life under Article 21 and the right to exploitation under Article 23 of the Indian Constitution. In the 1990s the first LGBTQ organization AIDS Bhedbhav Virodhi Andolan was set up to fight the evil behavior towards the LGBTQ community. Later Naaz Foundation was set up and it filed a PIL challenging the constitutional validity of section 377.
In 2018, the SC in Navtej Singh Johar v UOI [12]Decriminalized section 377 through a five-judge bench. The Delhi HC in 2017 declare same-sex marriage to be legal in India, stating that they can be in a stable relationship but discouraged the legal status of the marriage. In 2019, a law was passed for the protection of transgender people i.e. Transgender Persons (Protection of Rights) Act.[13]
Also in the case of NALSA v UOI, it “recognized the right to self – identification and legal recognition of gender identity for transgender individuals.” [14] In 2005, the Protection of Women from Domestic Violence Act was gender neutral law that included same-sex couples too. In Justice (Retd.) K. S. Puttaswamy v. Union of India “the right to privacy as a component of the right to life and liberty (Article 21), finding that privacy is fundamental to the human experience and applicable to all people regardless of gender or sexual orientation”.[15]
But, there is no legal validity of the same- sex marriages in the Indian subcontinent. There is a question regarding the validity of same-sex marriage, child custody, divorce & recognition. There was a recent case of Supriyo v UOI. [16] , where two males file a petition to do marriage under the Indian Special Marriage, 1954. But the court denied giving them legal status by stating the law particularly mentions marriage between women and men and thus rejected giving them legal marital status.
The Indian society can be inferred as conservative. Indians believed that marriage could only be solemnized between man and woman and it was the only way of procreation. If we look at history, many kingdoms used to promote gender fluidity. Some of the prominent examples are “the birth of King Bhagirathi; the temples of Khajuraho, the Ellora caves in Maharashtra, and the Sun Temple in Kornak; and the famous text, Kama Sutra, written by Vatsyayana, which deals with sexuality, eroticism, and the emotional fulfillment of life”[17] But, still Indian society doesn’t support same-sex marriage.
Conclusion:
Marriage is a concept believed to be between men and women. But, even in history marriage happened between two similar genders. A marriage where both similar genders marry each other and become obligated to perform conjugal rights is called same-sex marriage. According to Bentham’s theory law in support of same-sex marriage should be brought, as laws create more happiness among the individuals and reduce the pain from the society. Bentham believed that whatever gives a person pleasure is good, and that can be anything including marriage, sex, and gender identity. He was an individualist and his theory was based on individualism thus laws on same-sex marriage should be brought. Marriage is not only the union of two people but also involves love, trust, companionship, belief, and inclusion of emotional well-being. Same-sex marriage is one such type of marriage in our society. Thus, same-sex marriage must be legalized in India.
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[2] ERASMUS UNIVERSITY ROTTERDAM, https://personal.eur.nl/veenhoven/Pub2000s/2004c-full.pdf, (Last visited Sep. 15, 2024).
[3] STANFORD ENCYCLOPEDIA OF PHILOSOPHY, https://plato.stanford.edu/entries/bentham/,(Last visited Sep. 15, 2024).
[4] STANFORD ENCYCLOPEDIA OF PHILOSOPHY, https://plato.stanford.edu/entries/bentham/,(Last visited Sep. 15, 2024).
[5] BRITANNICA, https://www.britannica.com/topic/sexual-orientation, (Last visited Sept 17, 2024)
[6] JSTOR, https://www.jstor.org/stable/2141580, (Last visited Sept 16, 2024).
[7] JSTOR, https://www.jstor.org/stable/2141580, (Last visited Sept 16, 2024).
[8] JURNAL UNIVERSITIES SEBELAS MARAT, https://jurnal.uns.ac.id/privatlaw/article/view/77462,(Last visited Sept16, 2024).
[9] STANFORD ENCYCLOPEDIA OF PHILOSOPHY, https://plato.stanford.edu/entries/bentham/,(Last visited Sep. 15, 2024).
[10] Gregory E. OGBENIKA, an ethical evaluation of same-sex marriage and its implication on formation, (Last visited Sept 16, 2024).
[11] SUBHASHREE NAYAK& DR. SWAYAM PRABHA SATHYPATHY, Determinants Affecting Social and Legal Status: A Study on Same-Sex Marriage in Indian Context,(Last visited Sept 16, 2024).
[12] Navtej Johar V Union Of India, AIR 2018 SC.
[13] PRSINDIA, https://prsindia.org/billtrack/the-transgender-persons-protection-of-rights-bill-2016, (Last visited Sept 16, 2024).
[14] National Legal Service Authority v Union Of India, AIR 2014 SC 1863.
[15] Justice (Retd.) K. S. Puttaswamy v. Union of India,(2017)10 SCC 1.
[16] Supriyo Chakraborty & Anr V Union of India, W.P.(C) No. 1011/2022.
[17] SUBHASHREE NAYAK& DR. SWAYAM PRABHA SATHYPATHY, Determinants Affecting Social and Legal Status: A Study on Same-Sex Marriage in Indian Context,(Last visited Sept 16, 2024).
Author: Anusuya Roy Chowdhury, student of Symbiosis Law School, Nagpur
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