Earlier this month, India’s Hindu nationalist Bharatiya Janata Party (BJP) government opposed a plea in the Supreme Court to recognize same-sex marriages in the country, asserting that doing so would cause “complete havoc” in accepted “societal values.” The three-judge bench of the apex court hearing the case decided to refer the matter to a larger five-judge constitutional bench as it is a matter of “seminal importance.”
The government’s homophobic stance is a setback for the struggle to decriminalize same-sex relationships in India, which has seen many ups and downs over the past two decades. The bill to repeal Section 377 of the Indian Penal Code — a colonial law that treated homosexual relationships as “carnal intercourse against the order of nature” and therefore “unnatural” — was initiated in 2001. In 2009, the Delhi High Court ruled in favor of the decriminalization of gay relationships. Conservative political, social, and religious groups then mobilized to restore the law and in 2013 the Supreme Court struck down the Delhi High Court ruling.
In 2018, in response to a plea filed by dancer and gay rights activist Navtej Singh Johar, the Supreme Court struck down the application of section 377 of the Indian Penal Code to same-sex relationships. It legitimized consensual sex between two adults, including partners of the same sex.
Same-sex relationships are recognized in India today, but same-sex marriages are not. Empowered by the 2018 court ruling, four LGBTQ couples approached the apex court seeking legal recognition for same-sex marriages. The BJP government has rejected the plea outright.
In its affidavit, it said that individuals living together as same-sex partners and having a sexual relationship, which is decriminalized now, “cannot be compared to the Indian family concept of a husband, a wife, and children born out of the union.”
Arguing for the government, Solicitor General Tushar Mehta said that after the 2018 judgment, same-sex couples had the right to love and express affection and that such relationships are “not stigmatized.” So, LGBTQ couples, according to the counsel, had the freedom to choose their relationships but they could not claim equal rights to marry their partners like heterosexual couples.
Marriage in India is governed by personal religious laws in the country. So, while the Hindu Marriage Act would apply to a Hindu couple, Muslims, Christians, and Parsis can marry under their specific religious matrimonial laws. Significantly, consenting adults could also opt to marry under the Special Marriage Act, which is often used in cases of interfaith and interreligious marriages.
In its affidavit submitted to the court, the government expressed that view that the personal law in India “recognizes marriage as being the union of one man and one woman only” and that the “institution of marriage” has a “sanctity” attached to it. Marriage is a “sacrament, a holy union and a sanskar” (ritual according to Hindu culture), it said.
The government counsel sought to present an alarming future scenario before the court should same-sex marriages be legalized, emphasizing the harmful impact it could have on adopted children in such marriages. In response, Chief Justice D.Y. Chandrachud said, “Mr SG [Solicitor General), the adopted child of a lesbian or gay couple need not necessarily be a lesbian or gay.”
LGBTQ relations are anathema to the BJP and its ideological mentor, the Rashtriya Swayamsewak Sangh (RSS). Backing the government’s stand, the RSS’ Dattatreya Hosable said that in Hindu tradition, marriage is a social institution, mainly for procreation and creating a family. It “is not for personal, physical and sexual enjoyment,” he argued. Same-sex marriage, he asserted, is therefore against Indian culture.
This conservative ethos was reflected in the BJP government’s stance in court, with the latter reiterating that marriage essentially “depends upon age-old customs, rituals, practices, cultural ethos and societal values.” The government even urged the courts to refrain from deliberating on such issues and to leave it to the wisdom of the legislature. It added that it was for the Parliament to decide which relationships were to be “recognized, regulated or to be prohibited,” keeping in mind the religious and societal values in the country
One of the petitioners — a transgender woman — urged the court to protect her fundamental rights to free opinion and expression (Art. 19) and liberty (Art. 21). “The right of choosing a partner is the right of expression, right of dignity. It’s only a natural right, an assertion of a right,” she said.
LGBT activist Prijith slammed the BJP government’s “homophobic attitude” and alleged that the decision was taken keeping in mind its conservative support base and upcoming elections.
While the BJP loses no opportunity to highlight the glory of Hindu rulers in India’s history, it conveniently glosses over the openly homosexual sculptures in erotic poses carved on ancient Hindu temples at Khajuraho and even the Sun Temple at Konarak. While Hindu culture was comfortable with sexual, even homosexual relationships, these are taboo to Hindutva activists.
According to data highlighted by The Hindu, 133 countries worldwide have decriminalized homosexuality, but only in 32 of them is same-sex marriage legal. Another former British colony, Singapore, recently decriminalized homosexuality but did not legalize same-sex marriages.
Gay and queer rights advocates have long been demanding equal rights as heterosexual couples. Denied their constitutional right to equality, long-time LGBTQ couples have not even been able to sign as a close relative for their partners in medical emergencies and for their final rites.
Chandrachud has said that the question of the legalization of same-sex marriage will be taken up by a larger constitutional bench in April. The hearing will be livestreamed on YouTube and the Supreme Court website.
India is a deeply homophobic society, where personal religious laws disallow same-sex relationships and unions. In such a scenario, it is for the judiciary to lead the way by stepping in to correct a historic wrong.
Just as the apex court had decriminalized homosexual relationships earlier, the court now needs to ensure that LGBTQ citizens are entitled to their basic rights to choose and marry their partners just like heterosexual couples.