Same-sex marriage: Modi government stand has not come as a surprise

On expected lines, the union government has opposed legal recognition of same-sex marriages in an affidavit in the Supreme Court

Representative image
Representative image

Ashlin Mathew

On expected lines, the union government has opposed legal recognition of same-sex marriages in an affidavit in the Supreme Court. The government highlighted that “despite the decriminalisation of Section 377 of the Indian Penal Code (IPC), the petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country”.

This has not come as a surprise either to the petitioners or to the community. The Modi government has repeatedly been stating it on several occasions including in Parliament and the Delhi High Court. The government has been looking at it through the social understanding of marriage and not the Constitutional understanding of marriage.

In the most recent instance, the affidavit was filed in response to petitions seeking recognition of same sex marriages. The Supreme Court had issued notices on these petitions in November last year and January this year. In January, the apex court had transferred to itself all petitions seeking legal recognition of same sex marriage under various matrimonial statutes and had directed the Centre to file its response by February 15.

On Monday, March 13, the three-judge headed by Chief Justice of India DY Chandrachud referred all the petitions to a five-judge constitution bench as the issue is of “seminal importance”. The court will hear the matter on April 18.

While urging the Supreme Court to allow the legislature to decide the issue in Parliament, the union government underscored that the according to the legal understanding, Indian laws only refers to marriage between a biological man and biological woman. In the affidavit, the government reiterated that same-sex marriage is not in conformity with Indian ethos and social morality.

“Any interference would cause a complete havoc with the delicate balance of personal laws in the country and in accepted societal values,” stated the government in the affidavit.

What is BJP’s stand?

Despite the Supreme Court Collegium headed by CJI Chandrachud recommending multiple times the candidature of senior advocate Saurabh Kirpal for appointment as a judge of the Delhi High Court, the union government, in January, objected stating his “sexual orientation”.

The former Union Law Minister Ravi Shankar Prasad, in a communication to the Collegium, had said that Kirpal is open about his sexual orientation and is in an intimate relationship with a Swiss national. “The letter of the Law Minister dated 01 April 2021 states that though ‘homosexuality stands de-criminalised in India, nonetheless same-sex marriage still remains bereft of recognition either in codified statutory law or uncodified personal law in India,” read the Collegium statement.

In 2021, in an affidavit filed before the Delhi High Court, the union government had strongly opposed the validation of same-sex marriages, by asserting that a marriage in India is a solemn institution between a “biological man” and a “biological woman” capable of producing children.

The Centre said a marriage is only between a man and a woman and that interference in current marriage laws “would cause havoc” in the society.

In December 2022, BJP MP and former Bihar deputy chief minister Sushil Kumar Modi in Parliament urged the government to strongly oppose the issue of same-sex marriage in court. “Two judges cannot sit and take a decision on such social issues. This is against our culture, ethos and beliefs. Same-sex marriages will cause complete havoc with the delicate balance of personal laws in the country,” he said.

Ridiculing the US Senate’s decision to grant legal status to same-sex marriages, Modi said a few “left-liberal, democratic people and activists want India to follow the West”. He maintained that marriage is “sacred in India” and it has always been considered as a union between a man and woman.

What does the LGBTIQ+ community feel?

After the decriminalisation of Section 377 by the Supreme Court in September 2018, it has been pointed out on multiple occasions that the next logical step should be the legalisation of same-sex marriage as only then could the LGBTIQ+ community enjoy the ‘principle of equality’ enshrined in the Constitution.

Most people had expected the government’s response. Feminist activist and researcher Chayanika Shah said they were not surprised. “The underlying notion is that they believe that a marriage is only between a biological man and a biological woman. This shows that they don’t recognise transmen and transwomen marriages either. This government is not supportive of people who are not normative,” said Shah.

She underscored that the government believes that the marriage between a biological man and woman is above all other marriages. This, pointed out Shah, is a social understanding of the marriage and not a Constitutional understanding of the institution. “The Constitutional responsibility of the government is to recognise that everyone has a right to make a family and all families have to be considered equal,” reiterated Shah.

Advocate Suraj Sanap of the Centre for Health Equity, Law and Policy highlighted that the Supreme Court had recognised self determination of gender identity in the NALSA case judgment in 2014.

“This automatically means that whether it is marriage or any other question of substantive rights, biology cannot interfere or restrict your rights. The entire spectrum of marriage laws is coded within the binary of male and female gender. However, that does not stop the Supreme Court from determining the question of fundamental rights. The right to marry is a fundamental right,” added Sanap.

The National Network of LBI women and trans persons have filed a petition in this case. They have asked for the recognition of marriage under the Special Marriage Act, explained Sanap, and want the requirement of domicile address for marriages under this Act read down.

The petition wants the court to recognise the rights of the chosen family members. The community faces a lot of interference and violence from families and the police, so recognising marriage in this context is extremely important to shield people from abuse of this kind, explained Sanap.

However, the government’s response has several people worried. India’s first transgender lawyer Sathyasri Sharmila questioned the government’s motive with this move. “Does this mean that the government is trying to control Section 377 or bring back the colonial-era Section 377 through other means?” asked Sathyasri. She pointed out that by rejecting same-sex marriage, the government was attempting to control choice of partners.

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