New Delhi- In a nation where love knows no bounds, where the union of two souls is celebrated, there exists a poignant paradox. While many have the privilege to legally marry the person they love, a significant part of the society still grapples with a painful reality – the inability to formalize their unions. The struggle for the recognition of same-sex marriage in India has been a long and arduous journey, one marked by hope, determination, and relentless advocacy.
As the queer community and its allies eagerly anticipate a pivotal judgment from the Supreme Court, The Mooknayak delves into the heart of the matter, exploring the intricate facets of the ongoing legal battle.
A distinguished panel of five judges, presided over by Chief Justice D Y Chandrachud, engaged in the meticulous examination of a series of petitions that fervently sought the legal validation of same-sex marriage during the months of April-May. This eminent bench also comprised the justices: Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha. The outcome of their deliberations could mark a profound shift in India's legal landscape, as same-sex marriages, if legalized, would be formally incorporated into the Special Marriage Act.
Throughout the hearing, several compelling arguments took center stage, sparking critical discussions within the courtroom. On the inaugural day, Senior Advocate Mukul Rohatgi passionately advocated for the petitioners, contending that the fundamental right to marry should be accessible to every individual, irrespective of their sexual orientation. In his persuasive discourse, Rohatgi drew upon the landmark Supreme Court judgments in NALSA vs Union of India (2014), Justice K.S. Puttaswamy v Union of India (2017), and Navtej Singh Johar vs. Union of India (2018), all of which underscore the principles of equality and individual liberties.
However, the legal discourse also saw significant deliberation concerning the scope of the legal modifications. It was resolved that, for the time being, the proceedings would be tethered to the Special Marriage Act, bypassing considerations of personal laws, such as the Hindu Marriage Act. The Supreme Court Observer aptly noted that addressing personal laws governing other religious communities must also be on the agenda. This incremental approach holds the promise of allowing Parliament the latitude to evolve in harmony with the evolving social and legal landscape. The path to recognition and inclusivity, it seems, is marked by careful and deliberate steps.
Solicitor General Tushar Mehta, appearing for the Union of India, argued that the decision regarding marriages is to be taken by the parliament, and the judiciary has no role in it. He further stated that marriage is between "a biological man and a woman." CJI responded to the statement by saying that the definition of gender is "far more nuanced" than that.
Sr. Adv. Rakesh Dwivedi said that there was no equality between homosexual and heterosexual couples.
On the second day of the hearing, Sr. Adv. Mukul Rohtagi said, "Recognition of LGBTQIA+ marriages alone is not enough. Other rights must flow from the declaration. Otherwise, we will have to keep coming to the court for subsequent rights that heterosexual married couples have. Our lives are passing by. The society says we are abnormal, and they are normal." The Government of India called the petitioners 'urban elite,' completely disregarding those who have come from diverse backgrounds.
On the fifth day, Adv. Amritnanda Chakravorty said that the Central Adoption Resources Authority does not consider people in live-in relationships as 'stable' and makes them ineligible for adoption. Heterosexual couples can get married and thus can adopt. He further added that restricting joint adoption to heterosexual married couples is discrimination.
On the seventh day, the Government of India agreed to form a body to look into the list of problems faced by LGBTQIA+ individuals due to non-recognition of marriage. Meneka Guruswamy, Saurabh Kirpal, and Abhisekh Sanghvi mentioned that acknowledgment of administrative issues is not enough, and their unions should be recognized as well. "We cannot be treated as second-class citizens anymore," they added. The government went on to add that marriage recognition is not a fundamental right.
Over the weeks, different discussions were brought into the court, which ranged from same-sex couples wanting to be parents to the government asking how laws such as the Dowry Prohibition Act and rape laws will be applied. A positive judgment might throw everyone into a state of confusion as many personal laws will have to be looked at.
One important thing the hearing has done is that it has revealed rampant homophobia, transphobia, and misogyny, along with the lack of knowledge and sensitivity. A lawyer stating that same-sex couples are ineligible for adoption because they are not 'stable' goes against every health record. It has been decades since the World Health Organization declassified homosexuality as a 'mental illness.'
A detailed study by SOS Children's Villages reveals that there are more than two crore orphans in India. Among them, only a certain percentage make it to institutionalized care, making the rest vulnerable to abuse and trafficking. According to the National Crime Records Bureau, 1.5 lakh cases of crimes against children were reported in 2021. A child was sexually abused every 12th minute in this country. Diluting adoption laws will take the burden away from the institutions who otherwise have to go through structural and administrative issues anyway.
The varied statements made at the court also revealed the gendered nature of laws in our nation, such as the rape and alimony laws. The Solicitor General asked who would be getting alimony in case of divorce among same-sex couples. India has a history of being unfavorable to many communities due to discriminatory laws. It is not a new understanding that individuals of various genders, apart from women, might also face rape and sexual harassment. The unavailability of legal resources prevents them from seeking help from the police or even family members.
Laws around inheritance are also soaked in married relationships. Maybe it is time for both the legislature and judiciary to understand and make these laws applicable to other relationships as well so that marriage is not necessary for people to benefit monetarily or inheritance-wise.
The ruling Bhartiya Janta Party has openly been hostile to the queer community. Former law minister Kiren Rijiju hinted that even if the court passes a positive judgment, the parliament may obstruct it. State governments of Gujarat, Madhya Pradesh, and Assam have opposed the hearing and a bid to legalize same-sex unions. BJP has a government in these states. The other political parties are also not doing great. The Indian National Congress in Rajasthan, YSR Congress party in Andhra Pradesh, and Biju Janta Dal of Odisha have also opposed the same.
The Bar Council of India passed a resolution on 23rd April asking the Supreme Court not to deal with the case of marriage equality until a consultation process with different social and religious groups is conducted by the parliament. An interesting point to note is that all the members of the council are cisgender heterosexual men.
Prime Minister Modi has not made any official statement regarding the hearings till now.
Over thirty LGBTQIA+ student collectives of various law schools have published a statement condemning the ignorant resolution passed by the BCI.
Over fifty LGBTQIA+ Student Collectives from institutions such as IIT Bombay, IIT Kanpur, Indian Institute of Science, Jamia Millia Islamia, Jawaharlal Nehru University, University of Delhi, and many more have written an open letter to CJI Chandrachud. The letter urged the Supreme Court to "take cognizance of the status of LGBTQIA+ persons and recognize the right to marry and the right for family is for every individual, irrespective of their class, caste, race, gender, sexuality, ethnicity, religion, and disability in line with Article 14 of the Indian Constitution."
As per Pew Research (Feb-May 2023), fifty-three percent (53%) of Indians support LGBTQIA+ marriage, which is more than half of the population.
On 11th May 2023, the Supreme Court ended hearing all the arguments for and against same-sex marriage in India. The court reiterated that it cannot ask the parliament to make a law around it. "There's a constitutional doctrine that we have remained constant to — we cannot direct legislation, we cannot direct framing of a policy, we cannot enter the realm of policy making," Justice S R Bhat said.
The bench then reserved their verdict regarding the case. Justice Bhat is set to retire on 20th October, making the queer population anticipate a judgment regarding the marriage petitions.