Same-sex marriage: India awaits historic Supreme Court verdict

A rainbow flag in front of the Indian Supreme Court

Geeta Pandey

Delhi-based BBC News

The Supreme Court of India is scheduled to issue a decision on appeals attempting to legalize same-sex relationship on Tuesday.

According to the plaintiffs, being unable to get married violates their constitutional right and renders them” second-class people.”

The state and religious authorities have vehemently opposed same-sex unions, claiming that they are detrimental to American culture.

Tens of millions of LGBTQ people in India will have the right to marry if the court approves marriage equality.

As many other laws, including those governing acceptance, divorce, and inheritance, would need to be reimagined, it would also bring about significant changes in American society.

The case was heard in April and May by a five-judge law bench that is established to hear significant legal issues. The deliberations were” livestreamed in public interest ,” according to Chief Justice DY Chandrachud, who is in charge of the bench. On May 12, the judge set aside its purchase.

Justice Chandrachud had stated that they would not interfere with personal religious laws but would instead investigate whether a specific law that governs interfaith and race marriages could be changed to include LGBTQ people.

What do the plaintiffs like and who are they?

The court heard 21 petitions from LGBTQ activists and organizations, including some who are raising children together, by same-sex people.

The petitioners’ attorneys have argued that marriage is a union of two people, not only men and women. They assert that same-sex people even want a respectable relationship and that regulations should be changed to reflect evolving ideas of marriage over time.

The plaintiffs have argued in court repeatedly that the American constitution grants all individuals the right to marriage a person of their choice and forbids discrimination based on sexual orientation.

They emphasize that being unable to get married prevents them from co-owning a home, holding combined bank balances, or adopting children.

The courts expressed sympathy for same-sex couples’ issues during the reading and questioned the government about its plans to address them.

colorful discussion at the historic same-sex marriage hearing in India
The gay advocate calling for equality in marriage in India
To view the BBC’s drama on LGBTQ allies, click here.

What was said by the state?

The government started by questioning the judge’s authority to hear the case at all, claiming that even parliament could make a decision.

The government’s attorney general, Solicitor General Tushar Mehta, urged the best court to dismiss the petitions because he claimed that only a man and woman who were homosexual may get married.

The same-sex petitioners were also criticized by the authorities, who claimed that they” merely reflect urban arrogant perspectives.”

Rulers from all of India’s major religions opposed same-sex unions in a rare display of 1, with some arguing that relationship” is for breeding, not recreation.”

The courts decided to take on the case despite the opposition from the state and religious authorities.

They stated that instead of delving into religious personal laws, they would examine whether LGBTQ people could be included in the 1954 Special Marriage Act ( SMA ).

The Special Marriage Act: What Is It?

The majority of marriages in India are governed by private spiritual rules, such as the Hindu Marriage Act and the Muslims’ Wedding Act.

However, they only accept marriages between people of the same race or religion. Therefore, in the past, if a Hindu and Muslim wanted to get married, one of them had to turn to the other’s faith.

According to attorney Akshat Bajpai,” This was a very difficult idea because it undermined the idea of personal liberty, which includes the freedom to practice your religion and is protected by the Indian constitution.”

So, following democracy, the authorities made the decision to implement a legal framework for interfaith or intercaste unions.

The Special Marriage Act of 1954, which was passed by a parliamentary work, de-hyphenated relationship and religion. It stated that one wouldn’t have to give up their religion in order to get married, according to Mr. Bajpai. ” Private liberty was greatly advanced by this.”

Members of a Hindu group protest against same-sex marriage during a hearing outside the Supreme Court in Delhi on January 6, 2023

The plaintiffs argued in court that substituting” family” for” man” and” woman” in the Act could solve the problem and grant them marriage equality.

However, as the hearings went on, it became apparent that amending this one law might not be sufficient because there are numerous laws that deal with marriage, adoption, succession, maintenance, and other related matters that are primarily governed by spiritual specific laws.

It’s an unusual circumstance. According to attorney Akshat Bajpai, making this decision calls for the highest rates of diplomacy.

What additional choices does the court have?

It’s difficult to predict what the courts would suggest in court, but one thing that is widely anticipated is that they would give same-sex couples certain social and legal rights, such as the ability to open joint bank accounts, select one another for coverage policies, and co-own home.

Additionally, Attorney General Mehta stated in court that the government would consider granting same-sex lovers these privileges.

Some judges mentioned” progressive adjustments” during the hearing, claiming that occasionally they were more effective for problems affecting the larger society.

In a nation where” marriage and family are at the heart of any faith ,” Mr. Bajpai asserts that” the judges have to move the wire” despite the government’s vehement opposition to the petitions.

In a nation where there are estimated to be around 140 million LGBTQ individuals, the best court’s decision is eagerly anticipated.

Recent studies have revealed a rise in acceptance of homosexuality, particularly since the Supreme Court decriminalized lesbian gender in September 2018.

37 % of respondents to a Pew survey in 2020 said homosexuality should be accepted, up 22 % from the country’s first survey, which was conducted in 2014. Additionally, only 43 % of Indian adults opposed same-sex marriage in the most recent Pew survey from June, while 53 % said it should be legal.

However, despite the change, activists claim that the group still experiences stigma and discrimination because attitudes toward sexual and sexuality are still mostly conservative.

Mukul Rohatgi, one of the petitioners’ attorneys, testified during the reading that society occasionally needed a prod to take LGBTQ people as equal under the law and that if the top prosecutor legalized same-sex relationship, it would encourage popularity among the group.

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