Supreme Court: India same-sex marriage case tests judges

As the Indian Supreme Court continues to hear petitions seeking to legalise same-sex marriage, it’s becoming evident just how complex the issue is.

Earlier, lawyers for the petitioners had argued in court that marriage was a union of two people, not just a man and woman, that concepts of marriage had changed over time, and that denying them the right to marry violated the constitution.

Day six of the discussion, that’s being “livestreamed in public interest”, saw Solicitor General Tushar Mehta on Thursday speaking on behalf of the government, which has strongly opposed marriage equality for the LGBTQ+ community.

The government’s main contention from the start has been that only the parliament can discuss the socio-legal issue of marriage and the court has no right at all to hear the matter.

Disregarding the government’s objections, the judges had said they would not wade into religious personal laws but look at whether the Special Marriage Act of 1954 – which allows marriages between people of different castes and religions and weddings held abroad – could be tweaked to include LGBTQ+ people.

But as the hearings have continued, the five-judge bench has been conceding that tweaking one law may not really work, since it’s a complex web of 35 laws that govern issues of divorce, adoption, succession, maintenance and other related issues – and that many of them do spill over into religious personal laws.

And during Thursday’s hearing, the top court appeared to agree with the government that granting legal sanction to same-sex marriage was parliament’s domain.

“We take your point that if we enter this arena, this will be an arena of the legislature. You have made a very powerful argument that this is for the parliament,” Chief Justice DY Chandrachud said.

The bench, however, went to say that the court could “act as a facilitator” to push the government to find solutions to real problems faced by cohabiting same-sex couples.

They asked Mr Mehta what the government intended to do to give same-sex couples a sense of security and ensure they had basic social rights like opening joint bank accounts or nominating a partner in insurance policies or school admission for their children. And how was the government going to ensure that they were not ostracised?

Mr Mehta said he would hold consultations with the government and report back to the court on 3 May. The government may consider tackling some of the issues that same-sex couples are facing without granting them legal recognition, he added.

In the court, the solicitor general has argued that the right to love and cohabit was a fundamental right, but marriage itself was “not an absolute right” – not even among heterosexual couples.

Mr Mehta pointed out that there was a list of prohibited relationships, such as those involving incest, and asked the court “to visualise a situation in which five years down the line” and a person comes seeking the right to marry a sibling.

“Incest is not uncommon in the world and it is prohibited everywhere,” he said, adding that arguments of right to choice and sexual autonomy raised by the same-sex petitioners may be used to defend incest at a later date.

“But this will be far-fetched. Sexual orientation and autonomy cannot be exercised in all aspects of marriage,” the judges replied.

The debate is being keenly watched in a country which is home to tens of millions of LGBTQ+ people. In 2012, the Indian government put their population at 2.5 million, but calculations using global estimates believe it to be at least 10% of the entire population – or more than 135 million.

Over the years, acceptance of homosexuality has also grown in India, especially since the September 2018 ground-breaking ruling that legalised consenting gay sex.

But attitudes to sex and sexuality remain largely conservative and activists say most LGBTQ+ people are afraid to come out, even to their friends and family, and attacks on same sex couples routinely make headlines.

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