Landmark Same-Sex Marriage Hearings Begin at India Top Court

Shruti Mahajan
Updated ·3 min read
7

(Bloomberg) -- India’s Supreme Court began hearing arguments for granting legal recognition to same-sex marriages in a crucial case that will decide the fate of marital and allied rights for lesbian and gay couples in the 1.4 billion-strong South Asian nation.

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The court will confine the hearing to India’s secular law on marriage — the Special Marriage Act — without delving into the contours of the laws that govern religious marriages in the country, Chief Justice D. Y. Chandrachud said during the proceedings Tuesday.

“We have to be conscious of our own limitations,” Chandrachud said, hinting that amending existing laws, like religion-based personal codes falls within the powers of parliament.

It’s unclear how long the Supreme Court will take to decide the case, which addresses what it’s called a “seminal” issue of great importance. The court set up a five-judge constitution bench to hear the clutch of petitions after Prime Minister Narendra Modi’s government said it opposes gay marriage rights and that the matter should be legislated by India’s parliament and not decided by the courts.

In its latest court filing Sunday, the federal government buttressed its stand that deciding on issues touching upon human relations such as marriage is “essentially a legislative function.”

“India is a country of several divergent religions, castes, sub-castes and schools of religions, the personal laws and customs all recognise only marriage amongst heterosexual persons,” the government’s latest court filing adds. The government has also cited social norms to oppose same-sex marriage and said that the so-called idea of family in Indian culture only accepts marriage between a biological man and a biological woman.

India decriminalized homosexuality in 2018, but has yet to extend family rights to the LGBTQ community.

The court proceedings will be closely watched, particularly in Asia where Taiwan is the only jurisdiction to recognize same-sex marriage. Should India’s Supreme Court rule in favor of marriage equality, the country will become the world’s largest democracy to do so.

While the Rashtriya Swayamsevak Sangh — the ideological parent of Modi’s ruling Bharatiya Janata Party — had announced it opposed marriage equality, at least two Muslim religious groups have also placed their opposition before the court.

A number of rights, like adoption and inheritance, that are allied to marital rights remain absent for India’s LGBTQ people.

The National Commission for Protection of Child Rights also joined the fray of opponents to marriage equality, stating in an affidavit before the court that the existing legal system in India does not envision same-sex couples having custody over or adopting children.

In contrast, the Delhi Commission for Protection of Child Rights, a state-level independent body for the National Capital Region, has backed marriage equality and the capability of same-sex couples as parents. The Indian Psychiatrist Society also in a statement earlier this month urged for the members of the LGBTQ community to be treated at par with all citizens of the country.

(Updates with details of hearing.)

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