Supreme Court: Is India on the cusp of legalising same sex marriage?

Ankita Khanna and Dr Kavita Arora
Image caption,Ankita Khanna and Dr Kavita Arora have been together for 17 years

By Geeta Pandey

BBC News, Delhi

The Indian Supreme Court’s hearing into a number of petitions seeking to legalise same-sex marriage has entered its second day on Wednesday. The hearings are being “livestreamed in public interest”.

With same sex couples and LGBTQ+ activists hoping for a judgement in their favour and the government and religious leaders strongly opposing same sex union, the debate is turning out to be a lively one.

On Tuesday, as hearings began, both sides forcefully put forth their views. Lawyers for the petitioners said marriage was a union of two people – not just a man and woman. They argued that laws should be changed to reflect that concepts of marriage have changed over time and that same sex couples also desire the respectability of marriage.

But Solicitor General Tushar Mehta, who’s representing the government, questioned the court’s right to hear the matter at all. He said it was not an issue to be decided by five individuals – the judges – and only the parliament could discuss the socio-legal issue of marriage.

But disregarding the government’s objections, the judges said they would look at whether the Special Marriage Act of 1954 – which allows marriages between people of different castes and religious – could be tweaked to include the LGBTQ+ people. The court has told both sides to finish arguments by Thursday.

Among those keenly watching the proceedings are Dr Kavita Arora and Ankita Khanna, a same sex couple who’ve been waiting for years to tie the knot.

For the women, it wasn’t love at first sight. They first became co-workers, then friends, and then came love.

Their families and friends readily accepted their relationship, but 17 years after they met and more than a decade after they started living together, the mental health professionals say they are unable to marry – “something most couples aspire to”.

The two are among 18 couples who have petitioned the Supreme Court – at least three of them are raising children together.

Chief Justice DY Chandrachud has called it a matter of “seminal importance” and set up a five-judge constitutional bench – which deals with important questions of law – to rule on it.

Gender rights activists and supporters of LGBTQ community walk the Delhi queer pride parade on 8 January 2023
Image caption,India is home to tens of millions of LGBTQ+ people

The debate is important in a country which is home to an estimated 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. A Pew survey in 2020 had 37% people saying it should be accepted – an increase of 22% from 15% in 2014, the first time the question was asked in the country.

But despite the change, 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.

So a lot of attention is focussed on what happens in the top court – a favourable decision will make India the 35th country to legalise same sex union and set off momentous changes in society. A lot of other laws, such as those governing adoption, divorce and inheritance, will also have to be rejigged.

Ankita and Kavita say they hope it will happen, because that will make it possible for them to marry.

Ankita, a therapist, and Kavita, a psychiatrist, together run a clinic that works with children and young adults with mental health issues and learning disabilities.

On 23 September 2020, they applied to get married.

“We were at that stage in our relationship where we were thinking about marriage. Also, we were tired of fighting the system each time we wanted something done – such as get a joint bank account or a health insurance policy, own a house together, or write a will.”

One incident that proved “a catalyst” was when Ankita’s mother needed an emergency surgery but Kavita, who had accompanied her to the hospital, says she couldn’t sign the consent form “because I couldn’t say I was her daughter, nor could I say I was her daughter-in-law”.

Ankita Khanna and Dr Kavita Arora with the former's parents
Image caption,Ankita and Kavita with the former’s parents

But on 30 September, when they went to the magistrate’s office in their area to solemnise their marriage, they were turned away.

In their petition, filed through senior lawyers Menaka Guruswamy and Arundhati Katju, Ankita and Kavita say “what we seek is the right to be acknowledged as equals”.

The Indian constitution, their petition adds, gives all citizens the right to marry a person of their choice and prohibits discrimination on the basis of sexual orientation and their petition should be allowed since “constitutional morality is above social morality”.

“I’m very optimistic and have great faith in the judiciary,” Ms Guruswamy, whose team is representing six same-sex union cases in court, told the BBC.

Some of her optimism come from reading the December 2018 judgement that decriminalised gay sex – “the thing that struck me most was that the court emphasised the right to choice of partner and that makes me very optimistic”, she said.

While striking down the colonial-era law, https://merupakan.com the judges also said that “history owed an apology to LGBT people and their families for the ignominy and ostracism they have faced”.

But considering the opposition to same sex marriage from the government and religious leaders, Ms Guruswamy has a tough fight on her hands.

Members of a Hindu group protest against same-sex marriage during a hearing outside the Supreme Court in Delhi on January 6, 2023
Image caption,Attitudes to sex and sexuality remain largely conservative in India

The Indian government has urged the top court to reject the petitions, saying that a marriage can take place only between a man and a woman who are heterosexual.

“Same sex marriages are not comparable with the Indian family unit concept of a husband, a wife and children,” the law ministry argued in a filing in the court.

It added that the court cannot “change the entire legislative policy of the country deeply embedded in religious and societal norms”.

On Sunday, the government submitted another 102-page document in court saying that the “petitions merely reflect urban elitist views” and that recognition of same-sex marriage would mean a “virtual judicial rewriting of an entire branch of law”.

In a rare show of unity, leaders from all of India’s main religions – Hindu, Muslim, Jain, Sikh and Christian – also opposed same sex union, with several of them insisting that marriage “is for procreation, not recreation”.

And last month, 21 retired high court judges wrote an open letter saying allowing same-sex marriage would have a “devastating impact on children, family and society”.

Ankita Khanna and Dr Kavita Arora with the latter's father
Image caption,Ankita and Kavita live with the latter’s father

They added that it could increase incidence of HIV-Aids in India and expressed concern that it could “negatively affect the psychological and emotional development of children raised by same-sex couples”.

But the petitioners received a major boost when Indian Psychiatric Society (IPS) – the country’s leading mental health group which represents more than 7,000 psychiatrists – issued a statement in their support.

“Homosexuality is not a disease,” the IPS said, adding that discrimination against LGBTQ+ people could “lead to mental health issues in them”.

The IPS statement carries some heft – a similar statement supporting decriminalising gay sex in 2018 had been referred to by the Supreme Court in its judgement.

I ask Ankita and Kavita what they think will happen in court?

“We know that the constitution was framed to allow for equality and diversity and our faith in judiciary and constitution is unwavering,” says Ankita.

Adds Kavita: “We knew there would be opposition, we knew this wasn’t going to be a cakewalk. But we chose to undertake this journey, this is what we started, let’s see where it takes us.”

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