Can Apollo Marry Hyacinth In India ?

Homoerotic narratives have never been a novelty in the western culture. In Greek mythology, Apollo loved Hyacinth, a handsome Spartan prince. Their gleeful love affair even defied death. The loving duo enjoyed together hunting and climbing mountains. Apollo took Hyacinth into his sacred lands in the chariot drawn by swans. The jealous West wind Zephyrus killed Hyacinth and Apollo created a flower, the hyacinth, to immortalise his darling.So also Zeus, the king of Greek gods, loved Ganymede, the elegant prince of Troy. Zeus abducted him in the form of an eagle and made him an immortal and a cup-bearer in Olympus. These myths reflect the ancient Greek social custom of paiderastía, the accepted erotic relationship of an adult male with an adolescent male.

But in the eastern civilizations, except Chinese and Japanese cultures, the homoerotic relations have never been so legitimate and acceptable. But the winds of change are blowing everywhere- in the East and the West. Most of European and American countries decriminalised homosexuality in the second half of 20th century. The French Revolutionary Penal Code of 1791 decriminalised homosexuality and France becomes the first European country to decriminalize homosexual acts between consenting adults. The Wolfenden Report of 1957 recommended that "homosexual behavior between consenting adults in private should be decriminalised in England.Accordingly the Sexual Offences Act of 1967 decriminalised homosexual behavior.

The Netherlands became the first country in the world to legalize same-sex marriage on 1 April 2001.In England the "Alan Turing law" was passed in 2017 granting an amnesty to those who were convicted under the erstwhile homosexual acts. The law evokes the painful memory of Alan Turing, the World War II Enigma code-breaker and the father of Artificial Intelligence who was convicted of homosexuality in 1952.

According an article penned by Pamela Duncan published in The Guardian in 2017, around 120 countries have decriminalized homosexuality so far. Around 25 countries have legalised same-sex marriage and 26 countries allows for joint adoption for same-sex couple. However social stigma on homosexuality is lingering in both the occident and the oriental societies. Only gravity is varying. Homosexuality is culpable in 72 countries, and invokes capital punishment in eight.

The Supreme Court of USA in Obergefell v. Hodges (2015), categorically held that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. This verdict virtually invalidated the Defence of Marriage Act (DOMA) 1996 provision which defined marriage for federal purposes as the union of one man and one woman. In Minister of Home Affairs and Another v Fourie and Another (2005) the Constitutional Court of South Africa ruled unanimously that same-sex couples have a constitutional right to marry.

The winds of change are fast blowing eastward. In Sunil Babu Pant and Others v. Nepal Government (2007) Nepal's Supreme Court directed the Government to legislate for guaranteeing full rights to LGBT people including the right to marry. The Court observed: ''Looking at the issue of same-sex marriage, we hold that it is an inherent right of an adult to have marital relation with another adult with her/his consent and according to her/his will. Same-sex marriage should be viewed from the view point of interest and rights of the concerned people.''

The recent legalisation of same-sex marriage in Taiwan is the latest shot in the arm for the LGBTQ+ movement.Taiwan will be the first country in Asia to recognize same-sex marriage. The Constitutional Court ruled on May 24, 2017 that people's rights to equality and freedom of marriage implies same-sex couples' the right to marry under the Taiwanese Constitution. But in 2018, the referendum rejected recognition of same-sex marriage. But he Government took a stand that the Court's ruling would be implemented as the outcome of the referendum was contrary to the Constitution.Finally the bill was passed by the legislative Yuan on May 17, 2019 which is the International Day against Homophobia. Same-sex marriage will be legal in Taiwan on 24 May 2019 and onwards.

In National Legal Services Authority v. Union of India (2014) the Supreme Court of India declared that the fundamental rights granted under the Constitution of India will be equally applicable to transgender people, and gave them the right to self-identification of their gender as male, female or third-gender. The apex court further clarified that non-recognition of third gender relating to marriage, adoption, divorce, etc. is discriminatory to the transgender and as such constitutionally void.

The Supreme Court emphasised the determination of one's gender through self – identification. The Court held: ''Gender identity, therefore, refers to an individual's self-identification as a man, woman, transgender or other identified category… Each person's self-defined sexual orientation and gender identity is integral to their personality and is one of the most basic aspects of self-determination, dignity and freedom and no one shall be forced to undergo medical procedures, including SRS, sterilization or hormonal therapy, as a requirement for legal recognition of their gender identity.

''…Article 19(1) (a) of the Constitution states that all citizens shall have the right to freedom of speech and expression, which includes one's right to expression of his self-identified gender….Determination of gender to which a person belongs is to be decided by the person concerned….As already indicated, we cannot accept the Corbett principle of "Biological Test", rather we prefer to follow the psyche of the person in determining sex and gender and prefer the "Psychological Test" instead of "Biological Test"…Gender identity as already indicated forms the core of one's personal self, based on self-identification, not on surgical or medical procedure.''(Emphasis supplied)

In Navtej Singh Johar & Ors. v. Union of India (2018), the Supreme Court of India declared that insofar as Section 377 of IPC criminalises consensual sexual acts of adults (i.e. persons above the age of 18 years who are competent to consent) in private, is violative of Articles 14, 15, 19, and 21 of the Constitution. This ruling categorically decriminalised homosexuality in India.Section 4(2) The Transgender Persons (Protection of Rights) Bill, 2018 provides thata person recognised as transgender under sub-section (1) shall have a right to self-perceived gender identity.

In Arun Kumar and Sreeja V/s. The Inspector General of Registration and others, the Madurai Bench of Madras High Court on April 22, 2019 held that a marriage properly solemnised between a male and a trans-woman is valid under the Hindu Marriage Act 1955. It could be inferred that the marriage between a female and a trans-man would also be valid in the light of the above judgment. But the judgement is not clear about whether the marriage of a male with a trans-man would be valid or not. The other confusion lingering around the judgment is whether it legitimise the marriage involving transsexual alone or both transgender and transsexual.

The National Legal Services Authority v. Union of India judgment and the Transgender Persons (Protection of Rights) Bill, 2018 unequivocally underlined the determination of one's gender through self – identification. As such any person can declare himself as a transgender and marry accordingly. The criteria are not biological factors but psychological composition and sexual orientation. The Transgender Persons Bill, 2018 envisaged to empower the District Magistrate for issuing a certificate of identity as a transgender person, subject to the recommendation of the District Screening Committee. But the Bill is silent on how to determine one's transgender identity-whether based on the self-identification or based on biological/psychological factors.

The decriminalisation of homosexuality has universally been followed by the agitation for legalisation of same-sex marriage. India would not be an exemption. The question of same-sex marriage would rock our national debate in near future. So it can be safely concluded that Apollo can tie the nuptial knot with Hyacinth in India too, very shortly.