The world’s largest democracy is at the crossroad of monumental change.
India’s more than 2.5 million LGBTQ and intersex people are looking at the country’s Supreme Court with great hopes because it will hold another hearing on marriage equality on April 18.
The five justices on March 13 heard the issue.
The Supreme Court last Dec. 14 asked the Indian government to respond to two petitions seeking a transfer of marriage equality petitions before the Delhi High Court to itself. The government on March 12 filed a response to the Supreme Court.
The government opposed legal recognition of same-sex marriage and told the highest court that same-sex couples living together as partners and having a sexual relationship with the same sex individual, which is now decriminalized, is not comparable with Indian family unit — a husband, a wife and a child born out of the union. The government also told the Supreme Court that same-sex marriage is not compatible with the Indian ethos and morality.
According to the response filed by the government in the high court, the institution of marriage is crucial in India. It provides a sense of safety, security and companionship for the members of society. It plays a crucial role in the rearing of children and impacts their upbringing. While objecting to same-sex marriage in India, the federal government said that marriage between a biological male and female fall under personal law or laws — the Hindu Marriage Act of 1955, the Christian Marriage Act of 1872, the Parsi Marriage and Divorce Act of 1936, the Special Marriage Act of 1954 and the Foreign Marriage Act of 1969.
“The Indian Constitution gives equal rights to everybody. You cannot differentiate based on the gender of the people. Whether it’s the transgender rights bill or abrogation of section 377, everyone has recognized the presence of the LGBTQ community,” said Vijay Nair of Udaan Trust, an organization based in Mumbai. “How can you discriminate just based on male or female? The constitution does not discriminate based on gender, but the people running the constitution are now doing that, which is very unethical.”
Nair, while talking with the Washington Blade, said that he has faith in the Supreme Court as the court will give the verdict based on justice prevailing for anyone in the society, whether it is positive or negative or neutral, the court will deliver justice and will treat everyone equally.
Law and Justice Minister Kiran Rijiju, while appearing on India Today Conclave, a news TV program that invites experts, politicians and think tanks to discuss different issues in the country, on March 18 said Parliament must debate same-sex marriage and draft a law because it has representatives from across the country. Rijiju suggested that the Supreme Court could later change the status if it finds the decision against the spirit of the constitution.
Nair, while reacting to Rijiju’s statement, told the Blade that it is always good to take people on board because it should be a consultative process.
“People should not be unaware of things and it is always good to have people’s consultation,” said Nair. “We are okay with the process.”
Sadam Hanjabam, founder of Ya_all, an LGBTQ and intersex rights organization based in Manipur, told the Blade the government still looks at the family from the angle of male and female.
“If we look into the judgment of section 377, where it was said that homosexuals were criminal. But again, the judgment conflicts this time when saying two people who love each other must be a man and a woman. The government needs to reconsider the fact from the point of human beings rather than just gender,” said Hanjabam. “It is a very long route going through the Parliament as tried earlier. Many of the members of Parliament are unaware of this issue. So even if it is discussed or brought up in the Parliament, it is a new issue to them, and it is not an important issue to them. So, the best way is to go to the Supreme Court because it was the Supreme Court who removed section 377.”
The Supreme Court in 2018 struck down Section 377, a colonial-era law that criminalized homosexuality in India.
While there is a wide discussion going on in the country on same-sex marriage, a group of former judges on March 24 publicly opposed marriage equality.
“We respectfully urge the conscious members of the society including those who are pursuing the issue of same-sex marriage In Supreme Court to refrain from doing so in the best interest of Indian society and culture,” reads the statement. “The marriage, as well as the family system in India, is sui generis. In our humble opinion, legalizing same-sex marriage will strike at the very root of the family system and thus will have a devastating impact on society at large.”
Ankush Kumar is a freelance reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at firstname.lastname@example.org. He is on Twitter at @mohitkopinion.
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