'ALL HAVE A RIGHT TO MARRIAGE'

May 01, 2023

Down To Earth

Nearly five years after scrapping Section 377 of the Indian Penal Code that criminalised homosexuality, the Supreme Court in April 2023 began hearing petitions seeking legalisation of same-sex marriage, which would not just recognise unions within India’s LGBTQ+ (lesbian, gay, transgender, queer-identifying and others) community, but also allow partners to open joint bank accounts, make medical decisions and be eligible for inheritance. As a five-judge bench of the Apex Court headed by Chief Justice D Y Chandrachud heard arguments both for and against the petitions, debates arose on the institution of marriage, on whether marriage equality was an “elitist concept”, and even on the biological definitions of a man and a woman. DOWN TO EARTH spoke to two experts on the fate of marriage equality in India.

Acceptance not limited to court

SAYAN BHATTACHARYA

ASSISTANT PROFESSOR, HARRIET TUBMAN DEPARTMENT OF WOMEN, GENDER AND SEXUALITY STUDIES, UNIVERSITY OF MARYLAND, US

The matter of marriage equality is still being heard at the Supreme Court (SC), but certain themes have emerged that offer indications about the road ahead.

The Centre has made clear its opposition to the inclusion of the LGBTQ+ community within the ambit of marriage. In a recent interview, Kiran Rijiju, Union Minister of Law and Justice, said marriage is an ancient institution that should be debated in Parliament by elected representatives and not in a court of law. The ruling Bharatiya Janata Party, in its petition to SC, says the court should invite all states as party to the matter if it proceeds with hearings. If such debates have not occurred so far, how likely are they to take place in the future?

The Centre’s position on marriage has been consistent since the decriminalisation of Section 377 in 2018. Solicitor General of India Tushar Mehta in the ongoing hearings has repeatedly pointed to the definition of man and woman based on biology, and this binary as the foundation of a Hindu marriage. This prompted Chief Justice D Y Chandrachud to say the “notion of a man and a woman is not an absolute based on genitals.”