In part one, we looked at the arguments made by petitioners seeking to legalise same-sex marriages. In this instalment, we lay out why the government is fiercely opposed to the move—and the early signals sent by the court.
Obviously, the government doesn’t like same-sex marriage…
True. But the same government did not oppose the decriminalisation of homosexuality. The BJP’s views on homosexuality are not entirely black-and-white.
The 2013 Supreme Court ruling: In 2009, the Delhi High Court decriminalised homosexuality among consenting adults—only to be later overturned by the Supreme Court in 2013—following appeals from religious groups. At the time, the BJP leadership was divided. Some like Rajnath Singh said “we believe that homosexuality is an unnatural act and cannot be supported.” But Arun Jaitley and Piyush Goyal spoke up against the verdict.
Point to note: That ambivalence has since disappeared—with the RSS coming out strongly in favour of recognising homosexuality. Its head Mohan Bhagwat has said:
These people (LGBTQ) also have a right to live. Without much hullabaloo, we have found a way, with a humane approach, to provide them social acceptance, bearing in mind they are also human beings having an inalienable right to live… It’s not that these people have never existed in our country. People with such proclivities have always been there for as long as humans have existed.
The RSS claims that Hindu tradition recognises and calls for the peaceful coexistence of sexual minorities.
What happened in 2018: In a landmark judgement, the Court read down the colonial-era law—Section 377—that punished anyone who “voluntarily has carnal intercourse against the order of nature with any man, woman or animal.” At the time, the government’s lawyers said they would not contest the petitions challenging Section 377—but only when it applied to consensual sex between two adults. They also warned the justices: “Please do not say anything that may be construed for any object that your lordships did not intend”—specifically urging it not to rule on issues such as marriage.
Why are they so opposed to same-sex marriage then?
Since the 2018 ruling, the government and the BJP have been very clear in its opposition to legalising same-sex marriage. And it has consistently offered the same reasons—be it in public statements or in court filings.
[Marriage is] deeply rooted in the Indian social context and indeed is considered a sacrament in all branches of Hindu law. Even in Islam, though it is a contract, it is a sacred contract and a valid marriage is only between a biological male and a biological woman.
The government also makes a sharp distinction between domestic partnerships and marriage because… children:
Living together as partners and having sexual relationship by same sex individuals [which is decriminalised now] is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two—who are reared by the biological man as father and the biological woman as mother
BJP leaders like Sushil Modi also make it clear that same-sex families are bad for children: “The well-being of a child in a same-sex family will be severely impacted since he/she will cohabit in an environment that is legalised but is neither natural nor regular.” FYI: There is no evidence to back this claim.
Not a judicial matter: The government has repeatedly warned that marriage laws are beyond the remit of the judiciary:
Marriage is considered to be an aspect of social policy of the nation across the world. It is within the remit of the appropriate legislature, as the elected representatives of the people, to define it, recognise it and regulate it and the choice not to recognise same-sex marriage is simply a facet of the legislative policy,
And any decision to recognise or create “new” rights “can be done only by the competent legislature and not by judicial adjudication.”
Point to note: The government views the right to marriage as “new” and separate from the fundamental rights to equality, dignity, privacy etc.:
Creation or recognition of a new social institution cannot be claimed as a matter of right/choice, much less a fundamental right,” the Centre said. The right to personal autonomy does not include a right for the recognition of same-sex marriage.
The government’s lawyer also argued in court that the LGBTQ community’s fundamental rights have already been protected by the Transgender Persons Act:
“Please see the provision against discrimination. There are arguments that they are not getting this or we are not getting that treatment.” After reading the provision, he argued that “‘transgender’ here means LGBTQI and not what we colloquially or conventionally understand.”
The elitism angle: The legislature represents the people’s will—unlike the judiciary:
First things first, the state has a legitimate interest in maintaining a societal equilibrium and in ensuring that new practices do not lead to the breakdown of our cultural ethos and societal values. The judiciary, or more precisely two judges, however, learned and respected, cannot usurp this role.
And they certainly cannot do so on the basis of "petitions which merely reflect urban elitist views”—which “cannot be compared with the appropriate legislature, which reflects the views and voices of a far wider spectrum and expands across the country."
Problem of personal laws: BJP leaders also point out that same-sex marriage is not recognised by any of the personal laws—and any move toward legalisation will “play havoc” with them:
As per the Hindu Marriage Act, 1955, and various family laws and penal statutes, marriage is clearly defined as the union of a “man” and a “woman”. These laws without ambiguity refer to opposite sexes as “husband” and “wife” — a biological man marrying a biological woman. Muslim Personal Law also clearly defines mahr or other properties of a Muslim “woman” to be given to her at the time of divorce.
They also point to a variety of laws—from dowry to domestic violence—that are specifically framed to protect ‘wives’.
Hmm, and do the justices agree?
It’s far too early to tell. But initial statements made by Chief Justice Chandrachud definitely lean in the favour of the petitioners. Here is a quick roundup of key points made by the justices:
One: The Court will not tamper with personal laws and will only look at the Special Marriage Act. Hence, if the Court does rule in favour of the petitioners, then same-sex couples would be able to get married by getting a civil marriage licence—now given to interfaith couples who do not want to convert.
Two: The Court doesn’t accept the argument that the Special Marriage Act refers only to traditional definitions of ‘man’ and ‘woman’. Chandrachud told the government lawyers:
[T]here is a very important value judgement that you are making—that the very notion of a biological man is absolute or that notion of a biological woman is also absolute which is incorrect. There is no absolute concept of a man or absolute concept of a woman at all. Biological man is not a definition of what your genitals are… It’s far more complex… So even when the SMA says man and woman, the very notion of a man and notion of a woman is not an absolute based on what genitals you have.
If you want, you can also watch him make this point in Court below:
Three: The CJI doesn’t agree that same-sex relationships are just about consensual sex between adults:
We see these relationships not just as physical relations but something more of a stable, emotional relationship… And by decriminalising homosexuality, we have not just recognised treating relationships between consenting adults of the same gender, but we've also recognised that people who are of the same sex would even be in stable relationships
If so, then should we be redefining the institution of marriage?
[I]s the existence of two spouses who belong to a binary gender necessary for the requirement of marriage or has our law now progressed sufficiently to contemplate that the existence of binary genders, maybe, is not necessary for your definition of marriage.
Point to note: We haven’t heard much from the other justices on the bench—Sanjay K Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha. While the CJI’s point of view carries weight, it is no assurance of a favourable verdict.
The bottomline: Around the world and through history, courts have always been ahead of the curve—whether in granting voting rights to women or civil rights to minorities. The larger society has been dragged along—reluctantly and often angrily. If we relied on legislatures to get with the program, most of us would still be waiting to be treated as equal citizens.
Leaflet, The Hindu and Washington Post have the most on the government’s view of same-sex marriage. This Indian Express column by two area experts argues that legalising same-sex marriage requires only a small but important legal tweak—easily made by the courts. NDTV has the latest comments from Chandrachud. Council on Foriegn Relations offers a view of same-sex marriage around the world. Forbes looks at research on the impact of same-sex parenting on kids.