October 1st, 2020 | Written By - Reema Gupta '22
On September 14th, a petition was filed on behalf of the LGBTQ+ community in India to legalize same-sex marriage in the country. The petition invoked three major articles of the Constitution of India: the right to equality (Article 14), life (Article 21), and freedom of religion (Article 25). However, the court responded by blocking the petition, citing primarily the thoughts of Solicitor General Tushar Mehta on the fact that both the 1995 Hindu Marriage Act and the 1954 Special Marriage Act specified that marriage is between a “man” and a “woman”. But is this claim legitimate? This question is complicated for multiple reasons, but ultimately it is false since, first, neither acts specify requirements for the gender of the partners, and second, the culture of India is shifting to an era of inclusiveness and the court’s rejection of that notion is evidence of the deep-rooted homophobia.
Here’s some background on the topic: there are only 29 countries that have legalized same-sex marriage. While this seems to be too few, the call for marriage equality is imminent and ever-present in India. LGBTQ+ members and allies have filed numerous petitions to several courts, including one to the Kerala High Court in January. Not to mention, in 2018, India finally decriminalized homosexuality, a landmark decision that was honestly very delayed. Regardless, the call for change is happening and the mindset of Indians is clearly shifting towards the acceptance of members of the LGBTQ+ community. Given this information, we have to understand that when Solicitor General Mehta claimed that “Indian culture does not recognize such a concept”, it was obviously false since the “culture” of India is clearly not against LGBTQ+ relationships, at least it is not anymore.
From a more legal standpoint, Solicitor General Mehta cited that the Special Marriage Act and the Hindu Marriage Act are in contradiction of the petition. This is false as nowhere in either act does it explicitly state that marriage must occur between a “man” and a “woman.” It only brings up provisions required for each member organized by sex: for example, there is a section highlighting the age requirements for a woman and a man. Mehta also brings up this point and claims that by allowing same-sex marriage, it would undermine these regulations. But, since these rules are separated by sex and do not overlap, this would not harm anyone, each participant would have to follow their set of rules. Since there is no objection to the proposition already instated or to any term criminalizing the concept, same-sex marriage should be legal.
Finally, an important point to stress is that the duty of a Supreme Court is to call for justice. Marriage reform has occured in India in the past; the inclusion of inter-caste and inter-religion marriage are representative of this. These reforms have even occurred outside of India. Take the US for example, in our country the Defense of Marriage Act specified marriage between a man and a woman explicitly, yet the US Supreme Court was able to overturn this in 2013. There is no reason for the Indian court to not permit this decision, other than the judge’s personal beliefs surrounding homosexuality.
While a lot has changed, there is evidently more to be done. That being said, if the court were to put aside its personal beliefs they might understand that there is nothing preventing legalized same-sex marriage in India.
Image Published By Bloomberg Quint; Originally From PTI
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