India: Supreme Court to Hear Arguments to Legalize Same-Sex Marriage

Beginning on Tuesday, a five-judge Supreme Court constitution bench will start hearing several petitions concerning the legalization of same-sex unions in India. The petitions were referred to a larger bench last month by a CJI-led bench, who called it a “very seminal issue,” The hearing will now begin. The bench comprises Chief Justice DY Chandrachud and justices S K Kaul, S Ravindra Bhat, PS Narasimha, and Hima Kohli.

The discussion: Following the Supreme Court’s decriminalization of Section 377 of the IPC in 2018, which criminalized consensual sex done “against the order of nature” and was interpreted to include sexual acts between people of the same gender, there has been an increase in demand for legalizing same-sex marriages to lessen stigma and discrimination against the LGBTQIA+ community as well as a long-term effort to normalize homosexuality within society.

The justifications for sanctioning same-sex marriages:

The petition was backed by the Delhi Commission For Protection of Child Rights (DCPCR), which argued that same-sex families are “normal” and that the government should step in to support them. According to numerous studies, same-sex couples can make good parents. The child rights organization asserted that over 50 nations permit same-sex couples to adopt children legally.

The petitioners are asking for broader constitutional rights based on the rights to life and personal liberty, to dignity, and other related rights through their arguments.

The Indian Psychiatric Society (IPS) argued last week that same-sex families would help to advance their inclusion in society. The 2018 ruling decriminalized homosexuality was significantly influenced by the medical community’s position that homosexuality is not a disease.

The IPS stated that “…they are variations of normal sexuality, not deviant, and not a disease.” All civil rights, including those related to education, employment, housing, income, government or military service, access to health care, property rights, marriage, adoption, and survivorship benefits, should be enjoyed by members of the LGBTQI+ spectrum, the statement continued. Discrimination against these rights has been linked to mental health problems.

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Regarding the claim that children of same-sex couples may experience stigma, the IPS stated that while LGBTQI+ couples need to raise their children in a gender-neutral environment, the greater responsibility rests with the family, community, school, and society as a whole to raise awareness and take steps to protect and promote the development of all children.

The arguments against accepting same-sex marriages:

The central government, meanwhile, has consistently opposed the idea, claiming it only reflects “urban elitist views” and will upset the balance of personal laws and widely accepted societal values. The Centre countered that the petitioners could not assert that marriages between people of the same sex are a fundamental right, stating that “Marriage, as a legal institution, has many statutory and other consequences under various legislative enactments.” Because of this, any official recognition of such a human relationship cannot be viewed as merely a matter of privacy involving two adults.

The “family ecosystem” is allegedly threatened by same-sex marriage, according to organizations like the Jamiat Ulama-i Hind and Rashtriya Swayamsevak Sangh (RSS). These groups have opposed the legitimacy of such unions. “Among Hindus, marriage serves the purpose of spiritual advancement rather than merely physical gratification or procreation. According to the Jamiat and news agency PTI, it is one of the 16 “sanskaras” for Hindus. While RSS leader Dattatreya Hosabale agreed with the Centre that “people of the same sex cannot marry for their interests,” marriage “is not a contract but an institution, not an instrument for enjoyment.” “People of different genders marry for the welfare of society, not for the fulfillment of personal or physical sexual enjoyment,” he continued.