Same-Sex Marriage: An opportunity lost, hope not forever

Prem Chowdhry

Author and Former Academic, Delhi University

The five-judge Constitution Bench headed by Chief Justice of India (CJI) DY Chandrachud delivered four judgments on Tuesday on petitions seeking legal recognition of same-sex marriages. Although the judges’ observations differed in some respects, they unanimously agreed that as there was no fundamental right to marriage, this matter must be taken up by Parliament to legislate.

It is disappointing that the Supreme Court has put the onus on the legislature even though the Centre’s negative attitude to this matter is well known.

It was in 2018 that the apex court had decriminalised homosexuality, adjudging Section 377 of the Indian Penal Code (IPC) to be unconstitutional and declaring it to be infringing on the ‘fundamental rights of autonomy, intimacy and identity.’

Legal recognition of homosexuality but denial of homosexual marriage rights is not particular to India. Many other countries follow a similar pattern. For example, while homosexuality is legal in 133 countries, same-sex marriage is legal in only 32 of them. Among Asian countries, Taiwan alone allows same-sex marriages.

The 2018 verdict allowed consensual sex between adults of the LGBTQIA+ community. On Tuesday, the Supreme Court directed the Union Government to take all measures to create public awareness and eliminate the stigma faced by members of the community. However, the court stopped short of recognising same-sex marriages despite legal experts urging the government to pass a legislation to allow such marriages, as well as child adoption by same-sex couples and inheritance rights.

It is not hard to see that despite its official and legal recognition, homosexuality is still tainted with sin and perversion in the mainstream public discourse. From babas to politicians, many have spoken against the legalisation of homosexuality. For example, yoga expert Ramdev, in his petition to the Supreme Court, had described homosexuality as a ‘disease’. He also stated that it was a ‘curable’ disease and that there was a cure for it in yoga. Senior BJP leader Subramanian Swamy had said that homosexuality was against Hindutva. Yogi Adityanath, now Chief Minister of Uttar Pradesh and then BJP MP, had remarked: “Homosexuality is dangerous to social morality. If social norms and boundaries are done away with, there is not much difference between a man and an animal. The disease of men having sex with men is unnatural and not good for India.”

All religions, whether Hinduism, Islam, Christianity or Buddhism, have a divided opinion on homosexuality, which they can and do justify on the arguments drawn from their texts. Yet, it is clear that an overwhelming majority of the people, notwithstanding the religion they profess, perceive homosexuality as ‘abnormal’, ‘unnatural’ and, at best, an ‘illness’. Gay persons have been described as ‘violent subjects’ and a section of the media has linked their love life (and sexual behaviour) with violence and abnormality and depicted them as enemies of conventional values.

In the backdrop of such opinions, the acceptance of marriage of homosexual couples is a distant dream.

The SC ruling of 2018 had given courage to the LBGTQIA+ community to demand more — legal recognition of same-sex unions on a par with heterosexual marriages. There are also compelling practical reasons to seek social and legal recognition of same-sex marriages. Certain legal benefits, such as succession, maintenance and pension rights, that are available to married couples are not there for same-sex couples. Economic benefits under the Employees’ Provident Fund Scheme, 1952, and the Workmen Compensation Act, 1923, are given only to those related by blood or marriage.

However, it may be clarified that not all persons in same-sex relationships are seeking radical changes. Many of them merely desire acceptance without discrimination and the option to have a legally recognised partnership/marriage.

Many same-sex couples who wish to marry simply believe that the choice of a marital partner is an important personal decision over which others, particularly the state, should have no control.

Thus, the argument in favour of same-sex marriage is that if two people want to make a commitment of marriage, they should be permitted to do so. It is interesting that numerous lesbian marriages reported in the media have been largely between small-town, lower-middle class, non-English-speaking women who are not connected to the LGBTQIA+ movement. This shows its widespread acceptability among citizens of India, rural or urban, educated or uneducated.

It is disappointing that the Supreme Court has put the onus on the legislature even though the Centre’s negative attitude to this matter is well known. The Chief Justice’s opinion should have prevailed in all respects. He said: “The right to enter into a union includes the right to choose one’s partner and the right to recognition of that union. Equality demands queer unions should not be discriminated against. Material, economic and social benefits should be available to same-sex couples as to others.”

In not heeding the CJI’s advice, a good opportunity has been lost — let’s hope not forever.  

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