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Marriage Equality in India
The ongoing hearings on marriage equality in the Supreme Court have not only raised some pertinent constitutional and human rights issues but also certain key questions, the answers to which will decide the future of LGBTIQ+ rights and activism in India. A report of the ongoing trial is presented in this article, and the potential judicial outcomes are analysed against the backdrop of the constitutional framework, the lived realities of LGBTIQ+ lives, and India’s mainstream politics.
India could indeed be at the verge of becoming the second country in Asia (after Taiwan) to allow same–sex couples to legally marry if the Supreme Court decides affirmatively in favour of the petitioners in the ongoing trials. The demand for a “right to marriage” is a controversial and divisive issue on ideological lines, especially when it is brought through a judicial dictate. There has hardly been any organised political discourse in the last decades that could authoritatively represent the position of any mainstream political party on marriage equality. However, the political commitments of the current ruling coalition of the National Democratic Alliance (NDA), their respective members of Parliament (MPs), or ministers are not unknown in the public discourse. In the last nine years of the NDA’s rule, the Government of India has clearly put forth a consistent and unambiguous stand before the Supreme Court that the judicial verdict, which led to the decriminalisation of non–procreative sexual intimacy in 2018, does not automatically translate into a fundamental right for same–sex couples to marry.
In the ongoing trial before the Supreme Court, the government’s stand has been that marriage is a sacred union between a “biological” man and a “biological” woman and any judicial interference on the legislative design of marriage laws has far–reaching ramifications for the society, and thus, the question of allowing marriage equality should be best left to legislative wisdom. This shows that the electoral commitments of the ruling establishment are to salvage the traditional heteronormative family structure as one of their senior legislators had recently stated in Parliament (Modi 2023). In the current political configurations of both houses of the Indian Parliament, where the right–wing ruling coalition (NDA) led by Hindu supremacist political ideologies have a majority, it is improbable that Parliament can change the statutory status quo. On the other hand, to expect that there would be some bipartisan political consensus in passing any statutory reform, should the Supreme Court legalise marriage equality, is quite an implausible proposition, if not entirely unimaginable. Understanding that the matter hinges on larger constitutional questions, the Supreme Court has formed a constitution bench of five judges.
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