Beyond The Bench: Opposing Views On Queer Marriage In The Wake Of Supreme Court Hearings

If India legalises queer marriage, it will only be the second country in Asia after Taiwan to do so.

Last week, India’s top lawyers argued their case for the legalization of queer marriage. Now, lawyers acting on behalf of India’s ruling Hindu nationalist Bharatiya Janata Party (BJP) have concluded their argument against changing the legalisation.

The country will be waiting with bated breath until the Supreme Court announces its decision in July or August (if we are lucky). The case has India’s conservative BJP and the country’s powerful religious lobby – Hindu, Muslim, Christian and Sikh – against the LGBTQ+ community and allys, who argue India’s Constitution dictates the right to have your love consecrated and recognised by society, regardless of gender.

This hearing has been the most significant challenge to the queer rights status quo since 2018 when, in a landmark judgment, the supreme court struck down a colonial-era law criminalising homosexuality. If India legalises queer marriage, it will only be the second country in Asia after Taiwan to do so. Among the issues being raised in the case is not just marriage but also the rights of queer couples to adopt children and for their families to have the same rights as heterosexual parents.

Despite the optimism of the lawyers and petitioners, who have pointed to the Supreme Court’s past rulings in favour of LGBTQ+ rights, some organizations and bodies, including the Indian government, remain staunchly opposed to same-sex marriage.

The Centre: On March 12, the Indian government filed an affidavit before the Supreme Court opposing the legal recognition of same-sex marriage in the country. The affidavit argued that having a sexual relationship with a same-sex individual is incompatible with the Indian family unit, which is traditionally made up of a husband, wife, and children born out of their union. The government emphasized that recognizing same-sex marriage would not be in conformity with societal morality and Indian ethos. Since then, the government has continued to stand firm in its opposition, referring to same-sex marriage as an “urban elitist concept” that undermines religious and social values. On April 17, the ruling Hindu nationalist government, led by Prime Minister Narendra Modi, submitted a strongly worded affidavit to the Supreme Court, seeking to get the case thrown out of court. The affidavit stated that “a valid marriage is only between a biological male and a biological woman,” and argued that any recognition of same-sex marriage would go against religious values and “seriously affect the interests of every citizen.” The government also argued that such a decision should be left to the parliament rather than the courts.

Bar Council of India: The Bar Council of India (BCI) released a statement on April 23, 2023, opposing the Supreme Court’s hearing of the same-sex marriage case. The BCI argued that since the beginning of human civilisation, marriage had been accepted as a union between a biological man and woman for the purpose of procreation and recreation. It claimed that it would be catastrophic to change such a fundamental conception of marriage by any law court, no matter how well-intentioned. The BCI requested the Supreme Court to leave the matter to the Parliament, given the widespread socio-religious ramifications of such a decision. The BCI also asserted that it represented the common man and that over 99.9% of people in the country were against same-sex marriage. However, on Friday, the Supreme Court Bar Association (SCBA) released a statement terming the BCI’s resolution inappropriate. “It is the duty of the Court to hear the petition and decide whether the matter should be adjudicated by the Court or left to the wisdom of Parliament. This resolution should not be construed in any manner that we are supporting or opposing the petitioner in the matter pending before the Supreme Court,” SCBA said.

The Rashtriya Swayamsevak Sangh (RSS): The parent organisation and ideological backbone of the ruling Bharatiya Janata Party (BJP), has backed the Indian government’s stance before the Supreme Court, that marriages can only happen between opposite genders. RSS General Secretary Dattatreya Hosabale said at an event in Haryana that marriage is “not only for enjoyment but is an institution. It is not merely a union of two people. It is for the benefit of the family and society at large. It is not for physical and sexual enjoyment. That is the Hindu culture.” While the RSS, has opposed queer marriages, it has spoken in favour of members of the LGBTQ community. In 2016, Hosabale supported the decriminalisation of homosexuality but expressed reservations about granting marital rights to the LGBTQ community. In January this year, RSS chief Mohan Bhagwat said that members of the LGBTQ community and transgender persons have the same right to live as others.

National Commission for Protection of Child Rights: The National Commission for Protection of Child Rights has filed an application in the Supreme Court stating that the demand for changes to the adoption regulations is irrelevant to the question of legalising same-sex marriage, which is currently being considered by the court. The child rights body argued that the adoption regulations should be excluded from the case’s scope and that the commission is concerned about protecting children’s rights and monitoring the Juvenile Justice Act, which includes adoption provisions. One of the petitioners, Amburi Roy, has demanded that Sections 5(2) A and 5(3) of the Adoption Regulations, 2022, be declared unconstitutional. The sections relate to the eligibility criteria for prospective adoptive parents and allow only single women to adopt a child of any gender, while only a couple that has been in a stable marital relationship for at least two years can adopt a child, with the exception of adoptions by relatives or step-parents. The National Commission for Protection of Child Rights has requested that the current law be upheld, as the rights of children should not be involved in this case or determined.

Jamiat Ulama-i-Hind: The Jamiat Ulama-i-Hind, a Muslim organization, has filed an application before the Supreme Court arguing that recognising same-sex marriages would dilute the concept of marriage, Live Law reported on Saturday. The group argued that same-sex marriages are an assault on the family system and go against the personal laws of all religions that recognise the concept of marriage between a man and a woman.

The Jamiat Ulama-i-Hind argued that among Muslims, the concept of marriage is a socio-religious institution between a biological man and a biological woman. The group also pointed out that most eastern countries do not recognise marriage between members of the same sex, and such a union is prohibited by Hindus and Christians as well. “The nature of prayers in the present petition is in complete contravention of the established understanding of the concept of marriage in all personal laws – between a biological man and a biological woman – and thus intends to rake up the very core, i.e. the structure of a family unit prevailing in the personal laws system,” the Jamiat Ulama-i-Hind said.

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Armed with a B.A in English Literature from St. Xavier's college, Mumbai she set out to become a writer about a year ago. When not binge eating and watching reruns of any show she can get her hands on you will find her talking animatedly/ day dreaming/ glued to a book.
Krupa Joseph

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