Same-sex marriage legalisation: The Indian Supreme Court pushed the ball into Parliament

Md. Ziaur Rahman: All the inquisitive legal souls were awaiting the result from the apex forum of the Indian Court. There was a long legal battle between the activists for the LGBTQ and the government of India. Both had huge arguments in their favor. It was the Indian Supreme Court, which was the ultimate decision-giver, that would be the winner. All national and international media were vigilant to grab the news.

The Indian SC’s five-member bench heard the Supriyo v. Union of India (2022) case, and while giving decisions, they were divided into a 3:2. Among the justices, four had written separate judgments. Three judges did not allow same-sex marriage, and the other two judges were in favour of recognising it. SC outright did not deny the marital rights of LGBTQ; rather, by recognising some social and legal rights of LGBTQ, it showed empathy for them. SC said they would not formulate or legalise queer marriage but rather shifted the issue to Parliament to consider legalising same-sex marriage. SC was not willing to cross the boundary of the realm of parliament in a judicial review.

In India, personal law governs marriage. Hindu marriage is conducted according to the Hindu Marriage Act 1955, and Muslim marriage is under the Muslim Personal Law (Shariat) Application Act 1937. Earlier, if any Hindu or Muslim wanted to marry another religious believer, one had to change religion, which had serious criticism that changed religious beliefs and personal liberty. Later, to maintain a secular stand, the Special Marriage Act of 1954 was enacted to give a path to interfaith or intercaste marriage.

The petitioners filed a writ (petition no. 1011 of 2022) before the Supreme Court and urged amending the Special Marriage Act to widen its scope to include same-sex marriage. Homosexuality had been treated as unnatural and was an offence until 2018 in India. In the Navtej Singh Johar v. Union of India (2018) case, a five-member bench of the Indian Supreme Court unanimously struck down Section 377 of the Indian Penal Code and decriminalised same-sex. That judgement was considered a landmark for the LGBTQ community in India. It helped them to dream of recognising same-sex marriage as well. Within five years, they raised the issue before the apex court and, to include queer marriage, applied for amendment of the Special Marriage Act of 1954 to broaden its scope to include queer marriage.

Same-sex marriage petitioners argued in court that the right to marriage is not to marry between men and women; contraryly, it means that between two people, they have the right to marry irrespective of sexual orientation. They further argued that they are deprived and treated as second-class citizens as they are not able to get married and cannot open a joint bank account, co-own a house, or adopt a child. Opposing the points, the solicitor general argued in favour of the central government. Firstly, he brushed aside the petitoner claim on the ground that the court had no jurisdiction to decide the matter; it was the sole jurisdiction of the parliament to legalise same-sex marriage. He further argued that marriage could take place only between men and women who were heterosexual, whose object was procreation rather than recreation; same-sex marriage was not compatible with the family concept, which includes husband, wife, and children. He claimed that the demand reflected the views of urban elitists.

In its judgement, the Indian apex court did not legalise same-sex marriage, but it showed empathy towards LGBTQ people. It has ordered the government to form a committee headed by the cabinet secretary to make a policy that will consider LGBTQ rights and inclusion. It has also been admitted that LGBTQ has been a natural phenomenon in India for ages; it is neither urban nor elitist. It has ordered police not to harass the community. SC also directs to ensure that LGBTQ people are not discriminating against access to any goods or services. To sensitise the public, it has been directed to create a hotline number and a safe house for LGBTQ people.

The judgement did not give solace to the public; rather, it sparked riticism. It is estimated that 140 million LGBTQ people live in India. According to the Pew survey, after the decriminalisation of homosexuality in 2018, 53% of adult Indians are in favour of legalising same-sex marriage. Political parties are divided on the issue. The Visha Hindu Parishad (VHP) welcomed the verdict. In a coucious statement, Congress said they are to ensure all the rights of all citizens; they are analysing the verdict. Muslim cleric Maulana Sajid Rashidi expressed that the concept of same-sex is borrowed from the west, which does not match the culture of India. Just after the pronouncement, the Supreme Court bar president welcomed the verdict. The solicitor general hailed the verdict as historical, expressing that it would be read as a piece of scholarly and intellectual effort. Right activists claim the Supreme Court echos the voice of Indian conservative society.

In India, the family is considered the pillar of society, which contains traditional norms and customs. To make a decision on this highly sensitive issue, it is obvious that the judges had to work on tight ropes. Though the validity of same-sex marriage does not get approval from the Supreme Court of India, from this judgement, some LGBTQ rights have been recognised by the apex court.

Until now, Argentina, Australia, Germany, Mexico, the UK, Scotland, and Northern Ireland have legalised queer marriage. There are 35 states around the globe that recognise civil unions or same-sex couples, which are considered to have some or all the rights of legal marriage. Through decriminating homosexuality and later recognising some rights, the Indian Supreme Court makes the tough way comparatively easier for the LGBTQ community. Now the ball is in the court of the Indian parliament, which will have to finally decide on the same-sex marriage issue.

Writer is a Participant, Australian Awards Short Course on Building Cyber Resilience, Queensland University of Technology, Australia.