Why is govt so strongly opposed to giving legal recognition to same-sex marriages when same-sex relationships are no longer criminalised?
Aspirational India is on the global stage. Indians are joyously celebrating the country bagging two historic Academy Awards, better known as the Oscars. It is great news. As an Indian, I feel proud.
Aspiration is good. But clearly, in India, aspiration comes with strong caveats, especially when it comes to one’s personal life and intimate relationships.
One question that leaps out, again and again -- what does aspiration really mean to young Indians and why can’t they aspire to marry the person of their choice?
This week, that niggling question became a headline-grabber once again as the Supreme Court heard arguments from a bunch of petitioners seeking legal validation of same-sex marriages in India, and the Government of India’s counterarguments. The matter will now be heard by a Constitution Bench of five judges on April 18.
Same-sex relationships are no longer illegal in India. A landmark ruling by the Supreme Court in 2018 in the Navtej Singh Johar & Others vs Union of India case led to decriminalisation of all consensual sex among adults, including homosexual sex, upending a colonial-era law banning gay sex.
This was not an easy victory. It came after a long, protracted legal struggle by grassroots activists, lawyers, many marginalised groups like sex workers and the LGBTQIA (lesbian, gay, bisexual, transgender, queer, intersex, and asexual) community.
I have vivid memories of the time when same-sex relationships were illegal. I remember gut-wrenching stories from young, gay men who were terrified to disclose their sexual orientation to their families and lived in constant fear of being thrown out of rented apartments, jobs and forced to marry women, much against their wishes. As a reporter covering India’s HIV/AIDS epidemic from its early years in this country, I interacted with many gay men who were afraid to volunteer for medical testing. It was a traumatic time to live and love in a country where homosexuality was criminalised, where gays did not dare to “come out” publicly, and where social mores privileged a marriage between a biological male and a biological female at any cost. I wrote about gay husbands, straight wives, and shattered lives.
India has moved on. In 2023, same-sex love and union are not crimes. Neither is metropolitan India a stranger to “pride parades” -- outdoor events celebrating lesbian, gay, bisexual, transgender, and queer social and self-acceptance, achievements, legal rights and pride. But prejudice and stigma linger, and same-sex marriage continues to be unrecognised by Indian laws.
This week, the Narendra Modi government made clear its firm opposition to same-sex marriage. It has urged the apex court to leave the issue to Parliament. If you parse the legal arguments made in the apex court, it is clear that in essence, the contestation is about rights -- whether individuals who happen to be in a same-sex relationship have the same rights as others. There is huge resistance -- official and societal -- to viewing same-sex love through a rights framework.
So, we are back to asking the familiar question: who gets to decide who one should love, live with, or marry? Should a critical decision which concerns the most intimate part of one’s life, such as marriage, be hostage to the social norms of the majority or the State’s notion of what a marriage is all about?
Rohin Bhatt, a young human rights lawyer and LGBTQIA activist, is of the view that the proceedings in the Supreme Court and the affidavit of the Central government “has made it evidently clear that the government views the queer community as second-class citizens”. Marriage, of course, is a faulty institution, he says, “but it is a legitimate need of queer couples as it provides ancillary rights to both parties to the marriage”.
A legal basis for a relationship is what same-sex couples are asking for. Because lack of a legal basis of a relationship can adversely impact critical areas like adoption of children, their rights, inheritance, etc.
Why is the government so strongly opposed to giving legal recognition to same-sex marriages when same-sex relationships are no longer criminalised? The government’s case is premised on the view that the notion of marriage “necessarily and inevitably presupposes a union between two persons of the opposite sex”. In an affidavit in the apex court, the government argued such legal unions would cause “complete havoc” in the country. The government argues that “the relationship of marriage has more than personal significance because human beings are social beings [and are part of society] whose humanity is expressed through their relationships with others. It is submitted that entering marriage therefore is to enter a relationship that has public significance as well as against a purely private domain of individuals”. It argues that therefore, “there exists a clear larger legislative framework around the legislative understanding of marriage between opposite sexes… i.e. between a woman and a man”. It further argues that, “considering the larger statutory framework”, there exists “a legitimate State interest in limiting the legal recognition of marriage to persons of opposite sexes only” because it is the “norm throughout history and are foundational to both the existence and continuance of the State”.
The government says that marriage and the family “are important social institutions in India that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children and their mental and psychological upbringing”. Few would quarrel with this. But what evidence is there to suggest that same-sex couples are inherently incapable or ill-equipped to do all of these? The crux of the matter is about rights and is part of the broader narrative about the role of the State in personal matters and the freedom to choose. It extends to inter-faith and inter-caste marriages. If we are speaking the language of change, aspiration, and New India, why should young people remain tethered to old mores or old definitions and premises of the foundational principles of a marriage? If aspiration is the key, how can we deny women and men agency over their own marriages, especially when they choose partners outside their caste, religion, and majority norms? Sexual orientation is not about choice. If a man loves another man and wants to marry him, denying him his desire, and pushing him to marry a woman would not make for a happy or stable relationship. It is also not clear to me why heterosexual couples would feel threatened by same-sex ones.
Societies evolve. Social norms evolve. Currently, there are 32 countries where same-sex marriage is legal. If they have all survived same-sex marriages, why should same-sex marriages threaten India?