Khushboo Malhotra

The Supreme Court (SC) of India reserved its verdict on a batch of pleas seeking legal validation for same-sex marriage for members of the LGBTQIA+ community.

The Supreme Court reserved its verdict on a batch of 18 petitions seeking the right to marriage for members of the LGBTQIA+ community under the Special Marriage Act (1954), as well as the Foreign Marriage Act and the Hindu Marriage Act.

This hinted at the possible issuing of a constitutional declaration for same-sex couples that might fall short of legalising marriage rights.

“We filed the petition because this issue impacts our lives in a very tangible manner.”

A five-judge Constitution Bench discussed this matter of “seminal importance” to India, and heard arguments from more than a dozen lawyers during the nearly 40-hour-long arguments, spread over 10 days, as reported by TOI.

India’s Same-Sex Marriage Advocates

The petitions urged the Supreme Court for equal social rights for LGBTQIA+ couples. Lead petitioners Supriyo Chakraborty and Abhay Dange, represented by their lawyers, argued that denying recognition to same-sex marriage is discriminatory, infringing upon the dignity and self-fulfilment of LGBTQIA+ couples.

They emphasized the possibility of extending the Special Marriage Act (1954), which permits inter-caste and inter-religion civil marriages, to include LGBTQ+ couples as marriage encompasses legal rights, privileges, and obligations that are “bestowed and protected by the law.”

“We filed the petition because this issue impacts our lives in a very tangible manner,” Dange told TIME. “We are the most important persons in each other’s lives and yet, we can’t call each other ‘husband’ legally, loudly, and proudly in this country,” he said.

“When you deny me the right of marriage, you deny me citizenship.”

Senior Advocate Mukul Rohatgi opened his argument in court by stating that the right to marry for non-heterosexual couples is implicit in Articles 14 (Equality), 15 (Non-Discrimination), 16 (Equality of Opportunity in Public Employment), 19 (Freedom of Speech), and 21 (Right to Life).

“When you deny me the right of marriage, you deny me citizenship. If you deny me citizenship, you are saying, ‘you’re no good, you’re not equal to a citizen under preamble so you stay where you are’,” Rohatgi argued. He added that the issue was about fundamental rights and should not be left in the hands of Parliament. 

The Delhi Commission for Protection of Child Rights (DCPCR) also advocated for the recognition of marriage, filing an intervention application to assist the court on the impact of such marriages on children.

Indian Governments Response to Same-Sex Marriage

While the bench was set to hear petitions, numerous affidavits and applications were submitted by the government and diverse organisations, weighing in on the issue.

The Indian government urged the SC to reject all pleas challenging the current legal framework, citing a “legitimate” state interest in limiting legal recognition “to heterosexual marriage/union/relations as being heterosexual in nature.”

“Living together as partners and having a sexual relationship by same-sex individuals… is not comparable with the Indian family unit concept of a husband, a wife, and children,” the ministry argued against same-sex marriage.

The ministry said that the court cannot be required “to change the entire legislative policy of the country deeply embedded in religious and societal norms.”

“The NCPCR argues same-sex marriage violates the Juvenile Justice Act 2015, which prohibits single men … from adopting a girl child.”

The government later submitted another 102-page document in court, arguing that the petitions “merely reflect urban elitist views” and that recognition of same-sex marriage in India would mean a “virtual judicial rewriting of an entire branch of law.” They also informed the court that it had received responses from seven states regarding same-sex marriage, and the Indian state governments of Rajasthan, Andhra Pradesh, and Assam opposed the petitions.

The National Commission for Protection of Child Rights (NCPCR) argues that same-sex marriage violates the Juvenile Justice Act 2015, which prohibits single men, let alone two men, from adopting a girl child.

The Shri Sanatan Dharm Pratinidhi Sabha believes same-sex marriages are “catastrophic” and that they would have a “pernicious effect” on Indian culture. The Jamiat-Ulama-i-Hind weighed in stating, “Islam’s prohibition of homosexuality has been categorical from the dawn of the religion of Islam itself.”

“LGBTQIA+ movement dates back to the Western sexual liberation movement,” he said.

The Akhil Bhartiya Sant Samiti stated that same-sex marriage is “totally unnatural.”

Supreme Court Verdict

On the last day, the petitioners placed their rejoinder to the Union government’s argument that the right to marriage is not a fundamental right and that any recognition of same-sex marriages by the apex court would be tantamount to entering the legislative domain.

Senior Advocate AM Singhvi stated, “The reason for this is that marriage is not an abstract concept but a concrete social institution, valuable both in its own right and as a gateway to other rights. What petitioners seek is a right to access, on equal terms, this social institution.”

The Constitution bench had observed that everyone was presuming the declaration would be in the form of a writ.

“India has made significant strides in advancing LGBTQ+ rights.”

“We are all presuming that the declaration will be in the form of a writ that grants this or grant that. This is what we are accustomed to. What I was hinting was, as a constitutional court, we recognise only a state of affairs and draw the limit there,” Justice Bhat concluded.

What happens next?

India has made significant strides in advancing LGBTQ+ rights, with same-sex relationships gaining acceptance in metropolitan cities.

India is known to be home to a large LGBTQ+ community, with an estimated 135 million LGBTQ+ individuals, or 10 per cent of its population. Now, a survey by Pew Research Center, the results of which were released last Tuesday, has found that nearly 53 per cent of Indians surveyed are accepting of legalising same-sex marriage in India.

“It’s ‘developed, Western European countries’ that show the highest acceptance of legalising same-sex marriage, but India is among exceptions,” finds the survey.

India decriminalized homosexuality in 2018 in a landmark ruling by undoing a colonial-era law (Section 377). The country recognized transgender individuals as a legal third gender in 2014. However, the Indian government has yet to extend family rights to the LGBTQ+ community.

Regardless of the outcome, activists and petitioners are committed to challenging discriminatory laws, dispelling stereotypes, promoting dialogue, and fostering acceptance to reshape societal attitudes towards same-sex relationships.

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Featured image courtesy of Norbu Gyachung on Unsplash. No changes made to this image. Image license found here.

Khushboo is a Twitter Editor at Empoword Journalism. She is an Award-nominated lifestyle and pop culture journalist, writer, and budding entrepreneur aiming to break down the boundaries of cultural stigma and shame attached to mental health and sexual health and bring marginalised topics to light. Send your stories, tips, and press announcements to khushboomalhotrafreelance@gmail.com

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