The Indian government has expressed its vehement opposition to the legalisation of same-sex marriage, calling it an “urban elitist concept” that undermines religious and social values, as the supreme court begins hearings on the rights of LGBTQ people to be married under the law.
On Tuesday, dozens of petitions from LGBTQ couples and activists were brought before the country’s highest court as part of a collective lawsuit that is battling for the right of LGBTQ people to be married and have equality under the law.
It is the most significant challenge to the gay rights status-quo since 2018 when, in a landmark judgment, the supreme court struck down a colonial era law criminalising homosexuality.
The hearings on same-sex marriage come amid a gradual societal shift in India where LGBTQ people are becoming more visible, particularly in popular culture and in pride marches held in major cities, while there is a growing awareness around the right to equality. However, most accept there is still a long way to go in terms of full social acceptance and safety from stigma and harassment, as the country remains deeply traditional and patriarchal.
The chief justice has called the marriage issue one of “seminal importance” and a five-judge panel will hear the case, which is expected to go for at least two weeks.
On Monday the Hindu nationalist government, led by prime minister Narendra Modi, submitted a strongly worded affidavit to the supreme court expressing its opposition to same-sex marriage and seeking to get the case thrown out of the court.
“A valid marriage is only between a biological male and a biological woman,” said the government’s submission, stating that any equality offered to same-sex couples went against religious values and “seriously affects the interests of every citizen”, arguing that such a decision should be made by parliament not the courts.
The Modi government also recently opposed the promotion of a gay lawyer to the supreme court on the basis of his sexuality.
The lawyers and petitioners who brought the lawsuit were optimistic about the case, emphasising that the supreme court had made several significant rulings on LGBTQ rights even in the face of government opposition, including a 2014 case which recognised transgender people as a “third gender”.
Among those fighting the case are Kavita Arora and Ankita Khanna, a couple from Delhi who have been together for 11 years, after working together and eventually falling in love.
Their motivation for bringing the case was both practical – the need for a joint bank account, to give each other medical consent and to be legally recognised for inheritance – but also, said Khanna, a “fundamental belief that India as a democracy is a place for diversity, equality and justice for all and under the constitution our rights are no less than others.”
Arora added: “As we have grown together, we’ve understood that marriage in our country, in our culture, means a lot of important things: It means a sense of social recognition, a sense of validation and legally it sanctions a whole lot of different rights that queer couples are denied.”
They couple had first attempted to get married in a civil union September 2020 but were turned away and decided to take their case to the courts. “We do have faith in the fairness of the judiciary so we thought, why just complain about it? It deserves a debate in the highest court,” said Arora.
Arora and Khanna, who both work in child mental health, said that in a country like India where marriage holds huge social capital, and is almost the bedrock of society, opening up the institution to same-sex couples would be a momentous step forward in acceptance.
“We realised that this isn’t just about us,” said Khanna. “This is about so many of the young people we meet and the kind of future that they should have without thinking that just because they’re queer, they can’t have an identity and a life.”
If India legalises same-sex marriage, it will only be the second country in Asia after Taiwan to do so. Menaka Guruswamy, one of the lawyers fighting the case who was also at the forefront of the decriminalisation of homosexuality case in 2018, said she had “complete faith in the court”.
Among the issues being raised in the case is not just marriage but also the rights of same-sex couples to adopt children and for their families to have the same rights as heterosexual parents. This matter has also been opposed by the government body, the national commission for protection of child rights, which in a submission to the supreme court said “allowing adoption to same sex couple is akin the endangering the children.”
The case is also pushing for the rights of trans people to have their relationships and families of their choice legally recognised, arguing that it goes against a previous judgment by the supreme court.
Zainab Patel, a trans woman who is among the petitioners, said she expected it to be a long fight but said the denial of marriage to LGBTQ people “makes a mockery of our constitution and makes us second class citizens”.
Rohin Bhatt, another lawyer fighting the case who identifies as queer, said the case had implications not just for LGBTQ couples but also about equality for all under the constitution, and the right to marry who you chose, regardless of gender, religion or caste; significant at a time when inter-faith and inter-caste marriages are under attack from the Hindu right wing.
Bhatt described is as “dehumanising and disenfranchising” to hear the government’s arguments opposing same-sex marriage, accusing them of “emboldening homophobia”. He described it as part of a wider project of Modi’s government, as it shifted the country away from the democratic values of the constitution and towards the rule by religion.
“It’s about fundamental rights of citizens,” said Bhatt. “What we are asking for as queer people in this country is merely that the rights which exist for heterosexual couples be extended to us; nothing more and nothing less.”
