Out in the World: India's Supreme Court sends same-sex marriage case to Constitution Bench

  • by Heather Cassell, BAR Contributor
  • Wednesday March 15, 2023
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India's Supreme Court this week send the consolidated same-sex marriage case to the Constitution Bench. Photo: AFP
India's Supreme Court this week send the consolidated same-sex marriage case to the Constitution Bench. Photo: AFP

India's Supreme Court on March 13 sent the country's consolidated same-sex marriage case to a five-judge Constitution Bench.

Chief Justice D.Y. Chandrachud, along with Justices P.S. Narasimha and J.B. Pardiwala recommended the case, which involves four same-sex couples seeking marriage equality, be reviewed by the Constitution Bench, per Article 145(3), of India's Constitution.

"Issue concerning same-sex marriages is of seminal importance and needs to be adjudicated upon by a five-judge bench," the Supreme Court stated, reported Live Mint.

The couples argue they are denied rights heterosexual couples receive, such as medical consent, pensions, and adoption in their challenge to India's marriage laws, specifically its secular code, the Special Marriage Act.

The Special Marriage Act governs marriages between interfaith couples, atheists, and other couples who do not fall under other religious marriage laws.

The plaintiffs also cited the Supreme Court decision upholding the individual right to family and choice of partners in the judgment of Navtej Singh Johar v. Union of India (2018), which repealed British colonial-era anti-sodomy law, Section 377, commonly referred to as 377.

Chandrachud said the case involves an "interplay" between constitutional rights of life, liberty, dignity, equal treatment of LGBTQ+ community members, and specific statutory enactments that considers only a married union between a biological man and woman, reported The Hindu.

Chandrachud was sworn in as the court's 50th chief justice November 9, 2022, and also was one of the justices that repealed 377. While delivering his judgment for 377, Chandrachud said that the case was much more than decriminalizing a provision.

"It is about an aspiration to realize constitutional rights and equal existence of LGBT community as other citizens," he said, reported the Washington Blade.

Indian Prime Minister Narendra Modi's government continues to disagree. On March 12, the government filed a 56-page affidavit arguing against same-sex marriage based on tradition that marriage is between a man and a woman for creating future generations and cultural values. Following Monday's decision the government urged the justices to reject the case.

The plaintiffs are be represented by India's former attorney general Mukul Rohatgi and gay lawyer Saurabh Kirpal, the son of Bhupinder Nath Kirpal, India's 31st chief justice.

The Supreme Court Collegium approved the younger Kirpal as a judge to the Delhi High Court in 2021. The following year, India's parliament denied his appointment due to his LGBTQ activism. The Supreme Court Collegium disagrees with the government's decision and is arguing that the appointment should be reinstated, reported India Express.

Plaintiff couples Uday Raj Anand and his partner, Parth Phiroze Merhotra, and Abhay Dang, and his partner, Supriyo Chakraborty, realized they had few rights despite the decriminalization of sodomy in 2018.

"We can't do so many things in the process of living together and building a life together," Anand, a businessman told Reuters. His partner of 17 years, Merhotra, is chief editor of India's Juggernaut Books.

LGBTQ people are restricted from owning and inheriting property, reported NPR. In 2016, all Indians were banned from starting families using an Indian surrogate, including same-sex couples.

"We have a loving family with two wonderful children, and there is an indignity in not being recognized as a family in the eyes of the law," Anand told the South China Morning Post.

Dang, 35, who has been with his partner, Chakraborty, 32, for about 10 years and had a "big fat Indian wedding" in 2021, told the Post that they feel "like strangers" in the eyes of the law.

"I want to call Abhay my husband. That is important to me," Chakraborty said.

Dang agreed, "We feel like we are the most important people in each other's lives, but in the eyes of the law, we are like strangers."

In the conservative South Asian country of 1.4 billion people, there are an estimated 2.5 million LGBTQ people, according to a 2012 government survey filed by the Ministry of Health and conducted by India's National Aids Control Programme, reported the BBC. The data is the most recent available.

Jayna Kothari, a gender-law expert who co-founded India's Center for Law & Policy Research, told Reuters in December 2022 that a decision on same-sex marriage is "inevitable" and will be decided swiftly.

"The issue of marriage equality is likely to be decided at a hastened pace," said Kothari. "A decision on same-sex marriage in the near future is inevitable. That will be a landmark moment."

Final arguments for the case before the Supreme Court are scheduled for April 18. The hearing will be livestreamed for the public.

March toward marriage equality

Since the Supreme Court's repeal of 377 in 2018, India's LGBTQ movement has been divided about its next goal toward full equality. There were activists who believed the movement should tackle discrimination laws and those who wanted same-sex marriage, queer Indian activists told this reporter, who visited India in 2020 just before COVID-19 spread across the world.

Some felt that same-sex marriage was an impossible reach, especially after the Supreme Court rejected a marriage equality challenge in 2020, reported Bloomberg, but three years later, the impossible is appearing to be possible.

The two plaintiff couples filed their complaints with the Supreme Court November 14, 2022. The Supreme Court received the petition and issued a notice to the federal government and attorney general and posted it for further hearing November 25.

On January 3, a request to transfer two similar same-sex marriage cases from the Delhi and Kerala high courts was submitted to the Supreme Court. The court then moved nine same-sex marriage cases in the lower courts to its jurisdiction, gave India's central government notice, and scheduled the case's first hearing for March 13.

As with many things in India, marriage laws are complicated. India has five separate marriage laws governing Hindus, Christians, Parsis, Muslims (which is largely not codified), and the aforementioned secular code, the Special Marriage Act.

Some legal experts believe the court will focus on the Special Marriage Act to allow same-sex marriage, without expanding the religious codes, reported Time.

In an unusual turn of events, same-sex couples received support from an unlikely source, Mohan Bhagwat, head of Rashtriya Swayamsevak Sangh, a Hindu nationalist group that is the ideological parent of Modi's party. He recognized LGBTQ people as "a part of the Indian society" and noted that Indian civilization has traditionally acknowledged the community.

Bhagwat's statements were a departure from Modi's Bharatiya Janata Party and could shift the government's position.

India has a long history of accepting LGBTQ people.

"In the West, right up to the 19th century, people were executed for same-sex relations, or they were put in prison. India has, as far as we know, no such history. We have always written about it (homosexuality), talked about it, and discussed it," Ruth Vanita, an expert on gender studies and author of "Love's Rite: Same-Sex Marriage in India and the West," told NPR.

"It is high time that India recognizes and acknowledges the queer culture and heritage of India and ensures that the LGBTQ+ community is given the legal rights and protection they deserve," Ankit Bhuptani, LGBTQ rights activist and co-organizer at Queer Azaadi Mumbai Pride March, stated in an email interview with the Bay Area Reporter. "It is essential for the government to recognize and acknowledge this aspect of Indian culture, especially as they continue to push for progress and development in the country."

However, Bhuptani, a 30-year-old gay man, is not convinced that marriage equality is the answer. All of India's religious laws and communities complicate matters. He expressed disappointment that the central government refuses to recognize queer Indians and the long tradition of acceptance of LGBTQ people before colonialism.

Because of these realities, he believes that LGBTQ Indians need to fight for civil partnership, which would allow LGBTQ people to have nearly the same rights as straight Indians while not causing conflict between the legal and cultural communities.

Equal treatment began in 2009 when the Delhi High Court first struck down 377. But in 2013 the Supreme Court reinstated it and blocked other legal rights to LGBTQ people. In 2014, the court granted transgender people rights. In 2017, the court strengthened the country's right to privacy laws that also recognized sexual orientation as an essential attribute of an individual's privacy and dignity. In 2018, the court again struck down 377 and expanded constitutional rights for LGBTQ people. In 2022, the court expanded protections for "atypical" families recognizing single parents, blended families or kinship relationships, and same-sex couples.

Today, nearly 60% of India's urban population is comfortable with LGBTQ people being open about their sexual orientation or gender identity, according to the Ipsos 2021 LGBTQ+ Pride survey. More than 44% said they supported same-sex marriage more than public displays of affection, such as holding hands or kissing, between LGBTQ people (39%). The same isn't true for more conservative rural parts of India, where roughly two-thirds of the country's population live. Being LGBTQ is still considered taboo and queer and nonbinary people continue to face discrimination, harassment, and violence; shunning by family and community; and so-called conversion therapy.

India LGBTQ activists are hopeful marriage equality will become the law of the South Asian country.

Marriage equality in Asia

If the Supreme Court grants marriage equality it will make India the largest democracy in the world and the second country in Asia, after Taiwan, to legalize same-sex marriage. It will also make India the 34th country in the world to legally recognize same-sex couples' marriages.

Hong Kong, which has been a special administrative region of the People's Republic of China since 1997, doesn't recognize same-sex marriage, but it does grant dependent visas to same-sex spouses of expatriate workers. Thailand is working toward recognizing civil unions for same-sex couples.

Some countries are going the other way restricting diverse couplings, such as Indonesia banning all extra-marital sex and Singapore decriminalizing homosexuality but blocking same-sex marriage.

Heather Cassell reported from India. Got international LGBTQ news tips? Call or send them to Heather Cassell at WhatsApp/Signal: 415-517-7239, or [email protected]

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