Marriage equality: Be on the right side of history
There’s a unique opportunity for the five-judge bench that will start hearing arguments on same-sex marriage from April 18. What it will decide will send a signal to India and the world
The lines for the battle for marriage equality have been drawn. The central government through its affidavit is clear: Granting legal recognition to marriage within the LGBTQ community will cause “havoc” with the balance of the country’s personal laws, societal values and legislative policy that recognises marriage as a bond only between biological men and biological women. For the 15 petitioners, who await a verdict, the issue is simple. The Constitution guarantees equality to all. In 2018, when Section 377 criminalising sex “against the order of nature” was scrapped, the logical end was marriage rights. These are rights based on common sense. In addition to social validation, marriage confers substantial rights on married couples, from taxation and adoption to inheritance, that are denied at present to same-sex couples.
What is the havoc that solicitor-general Tushar Mehta fears? If personal religious laws don’t recognise same-sex marriage, then there’s the secular Special Marriage Act of 1954 that allows interfaith couples to marry. A government that talks of a common civil code can easily extend this common law to sexual minorities. It’s hard to imagine that Armageddon will be unleashed by extending marriage rights.
The government affidavit points out that the job of changing laws belongs to the legislature. But precedent tells us otherwise. The demand to ban triple talaq, for instance, first came from Muslim women, was upheld by the Supreme Court, and then translated into law by Parliament. In any event, it is the judiciary’s job to interpret laws and strike down provisions that go against the Constitution.
Societal values, the tired trope to object to progressive change, are never static. And conservatives who harrumph over live-in relationships ought to be delighted that more couples are seeking marriage. Over the past decade, the apex court has surely (though not always uniformly) recognised the new world. Granting recognition to the third gender, pushing inheritance rights for Hindu daughters or expanding abortion rights to single women, for instance. There has been progress for same-sex couples too. In 2022, a two-judge SC bench said protection of the law and benefits available under social welfare legislation are available to unmarried and same-sex couples. Chief justice DY Chandrachud who was part of that bench later spoke at a public event where he noted that decriminalisation of homosexuality alone could not guarantee equality.
There’s a unique opportunity for the five-judge bench that will start hearing arguments on same-sex marriage from April 18. What it will decide will send a signal to India and the world where support for same-sex marriage has been gaining ground, with the Church of England backing plans to bless same-sex marriage, Cuba voting to legalise such marriages, and a South Korean court recognising the rights of same-sex couples.
This is a chance for India to be on the right side of history. It’s a chance for the courts to affirm equality, and just as important, dignity to all citizens.
Namita Bhandare writes on genderThe views expressed are personal
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