Same-Sex Marriage: A Battle Between Constitutional Rights and Conservative Traditions

India's Supreme Court recently began hearing a series of petitions regarding the legalisation of same-sex marriages. During the hearing, the counsel for the petitioners presented a variety of interesting arguments, including a reference to the Roman Emperor Nero, who was believed to have married twice and both times to men. Additionally, Chief Justice Chandrachud referred to the origin of Lord Ayyappa, stating, "How was God born? Two Gods met – Lord Shiva and Lord Vishnu, Lord Vishnu was in the form of Mohini." These arguments have captured the attention of the public at large and further heated the debate on the matter.

While the petitioners are being led by senior counsel Mukul Rohatgi, SG Tushar Mehta is representing the central government, which has repeatedly opposed the hearing on the grounds that recognition of marriages is Parliament's decision. The government argues that only a "biological man" and "biological woman" can legally be married, while the court believes this to be a wrongful value judgment, stating, "There is no absolute concept of 'man' or 'woman'. It cannot be about your genitals.. far more complex… can’t depend on genitals." Despite the government's objections, the court overruled them and accepted the hearing, leading to a heated debate on the issue.

Rohatgi argued for the petitioners that societal conventions, while influenced by multiple factors, remain significantly governed by what the law says. Therefore, Rohatgi emphasised the need to "push society to acknowledge us (LGBTQIA+ community) as equals in all respects because the Constitution says so." Furthermore, Rohatgi emphasised the need for equal rights for the LGBTQIA+ community to be acknowledged under the social institution of marriage.

Constitution Morality Vs Popular Morality

Beyond this, Rohatgi brought up the issue of "constitutional morality" versus "popular morality." Rohatgi referred to the cave paintings of Khajuraho and differentiated between both. Rohatgi explained that popular or Victorian morality came in the 1800s, while Indian texts for hundreds of years depicted these non-heterosexual sexual acts. Rohatgi believed that, based on these factors, Indian morality was far more advanced and not stereotyped or stigmatised.

While the central government maintains that legal validation of same-sex marriages will cause "complete havoc" with the delicate balance of personal laws in the country and accepted societal values, the counsel for the petitioners argued for more constitutional entitlements based on the right to life and personal liberty and other related rights. The debate eventually led to the court overruling the government's objections against the judicial determination of the case.

Sometimes the Law takes the lead, sometimes the Society takes the lead

Rohatgi compellingly asserted that the issue of legalising same-sex marriage in India must not be dismissed based merely on the pretext that the Indian society is not yet prepared for it. He bolstered his argument by citing instances where such societal changes were led by legal intervention. For instance, he pointed out how the introduction of the Hindu Code, which encompassed not just the Hindu Marriage Act but also adoption and succession laws, was initially met with resistance and even led to Dr. Ambedkar's resignation, yet eventually became accepted as the norm after being implemented in a truncated manner.

Rohatgi also cited the Hindu Widows Right to Remarry Act, enacted during the 1800s, which the society was initially unprepared for and yet which the law successfully compelled. Drawing from these examples, he fervently urged the Supreme Court to proactively take steps to alter society's perception of the LGBTQ community as equals in all aspects. He also said , "When the highest court of the land says that you have a right to marry, that is what will drive the society to accept this group...Sometimes the law takes the lead, sometimes the society takes the lead."

Would not adversely impact personal laws: SC

The court stressed the need to take an "incremental approach" in the judicial decision-making process, noting it will reflect "sage wisdom." Specifically, the court noted that the remit of the proceedings would be limited to the validation of such marriages under the Special Marriage Act (SMA). Notably, the court emphasised that the validation of same-sex marriages would not adversely impact any other personal laws in the country. On Wednesday, Mukul Rohatgi concluded his arguments and the bench is now hearing arguments of senior advocate Abhishek Manu Singhvi for the petitioners. 

Sonu & Nikesh:  The first gay married couple to file petition for legalising same sex marriages in India

Nikesh Pushkaran (37), a businessman, and Sonu MS (33), a techie, made headlines in 2018 when they got married at the famous Guruvayoor temple in Trishoor, becoming Kerala's first married gay couple. The couple gained prominence as the first to move a petition in India to legalise same-sex marriages at the Kerala High Court in 2020. The couple is happy that the Supreme Court is hearing on the bunch of similar petitions on legitimising queer unions.

The duo believes that reading down section 377 is not enough as it only permits sexual relationships but does not recognise their marriage legally. They are demanding equal rights for homosexual couples, stating that they want more than the freedom to have sex. As a gay couple, they do not have the same rights as a heterosexual couple. For instance, Nikesh was unable to get a loan from a bank since they didn't have any proof of their relationship, except for some wedding pictures. In case of a medical emergency, Sonu cannot sign the consent document for Nikesh's surgery, making it necessary for his parents to do so instead.

Can't name each other as nominees, can't adopt babies

The couple also explains the everyday challenges they face because of the non-legalisation of same-sex marriage. For instance, they cannot name each other as nominees in their bank accounts or insurance policies, and they are forced to tick 'single' despite being legally married. They wish to adopt one or two children in the future but believe that legal recognition of queer unions is the only solution to the discrimination faced by them and countless others in the LGBTQ community. The couple is optimistic about a positive reply from the Kerala government during  the hearing , since the Leftist party had announced its support for equal rights of the LGBTQ section in their manifesto.

As the hearing continues, only time will tell whether or not same-sex marriages will be legalised in India. The counsel for the petitioners continues to argue for equal rights under the social institution of marriage, while the central government argues against legal validation. The country remains divided on the issue, with some believing the legalization of same-sex marriages would cause chaos while others argue that equal rights are critical. Ultimately, the decision lies in the court's hands, and it remains to be seen how they will rule on the matter.