Perspective: India’s Judicial Conundrum
In a momentous decision in 2018, India’s Supreme Court overturned Section 377, a British-era law that criminalized gay sex, marking a historic milestone for LGBTQ+ rights in India. This time, however, it is finding it far more challenging to legalize another equally archaic law: the Special Marriage Act which prohibits legal status for same-sex marriages.
In recent years, a collection of landmark cases in the Supreme Court of India have sought to reverse provisions of the Special Marriage Act—which was enacted in 1954—that are not gender neutral, and therefore, do not confer legality to marriages between same-sex couples. The petitioners of these cases claim that by not recognizing same-sex marriages, the statute violates the fundamental rights of such couples.
The petitioner demanded recognition of samesex marriage under the Hindu Marriage Act and the Special Marriage Act in India, arguing that India should abide by the international conventions—to which it is a signatory.
Opposing that plea, the Solicitor General argued that the term “spouse” under Hindu law can include only a male and a female; and that decriminalization of Section 377 did not automatically mean that those in same-sex relationships would have the right to marry. That right, it was argued, cannot fall within the purview of judicial adjudication but is a matter for the government and legislature to consider. Any judicial interference will “cause complete havoc with the delicate balance of personal laws.”
In April, a five-judge Constitution Bench expressed the Court’s reluctance to delve into the personal laws governing marriages, while also showing readiness to examine if India’s Special Marriage Act can be deemed gender-neutral. The Court is compelled to strike a delicate balance between a cultural ethos of centuries that has always seen marriage as between man and woman, on one side, and the increasing pressure to embrace modern values surrounding the definition of marriage, on the other.
In the U.S., just last year, Judge Ketanji Brown Jackson, during her Senate confirmation hearings as a nominee for the position of Supreme Court Justice, struggled with and then refused to define “woman.” In contrast, the Chief Justice of India, D. Y. Chandrachud, took the issue head on. Rejecting the conventional definitive view of gender, he stated that the very notion of a man and a woman as referred to in the Special Marriage Act, 1954 is not "an absolute based on genitals."
A government position stuck in the past
The Union Government, the Respondent in these cases challenging the Special Marriage Act, influenced heavily by the right-wing Bhartiya Janata Party, vigorously defended the Act, asserting that across the world, marriage is considered an aspect of a nation’s social policy; and it is for the legislature, as the people’s elected representative, to define, recognize, and regulate it.
Rejecting the argument that same-sex marriage is a fundamental right, the Government underlined that the existing concept of marriage as a heterogeneous institution that has the sanctity of law and religion, and the right to choose one’s partner, does not include the right to recognition of same-sex marriage. Creating or recognizing a new social institution “cannot be claimed as a matter of right/choice, much less a fundamental right.”
Dismissing the same-sex plea as merely a voicing of “urban elitist views” for achieving social acceptance, a charge vigorously challenged by the LGBTQ+ community, the Government urged the court not to try—judicially—to create a “new social institution,” and instead to leave the task to Parliament whereby people would decide whether such a marriage of a different kind is socially and religiously acceptable or not.
The Government further argued that existing Indian laws on transgender persons already guarantee several rights, including the right to choose partners and to sexual orientation and privacy; and that any discrimination against those who identify themselves as transgender is criminally prosecutable.
The Respondent continued by emphasizing that the socio-legal status of marriage cannot be achieved through judicial decisions or even by the legislature without acceptance from society.
Orthodox views, supported by a majority populace, die hard
Aligning with the government are several religious and non-governmental entities that cautioned the court against interfering with religious and social issues. Citing the specific complexities of same-sex marriage, which will pitch the state against religion, they referred additionally to the damaging effect on children being adopted by same-sex parents.
Complexity also arises from the inherent conflict of someone wanting to avail the right to marry within the same sex while remaining a Hindu, Muslim, or Christian. Marriage between opposite sexes, as the Jamait-Ulama-i-Hind stated, is the “basic feature of marriage.” “Islam’s prohibition of homosexuality has been categorical from the dawn of the religion of Islam itself,” says the organization.
Like many other countries, a major ideological divide exists in India between the common man, the elite class, and the political parties holding diametrically opposite views.
India’s judiciary and lawyers themselves are hardly one in their view of same-sex relationships, let alone marriage. The Bar Council of India (BCI) has asked the Court to avoid a decision on legal recognition of same-sex marriage and leave the matter to the legislature which reflects the people’s collective conscience. In contrast, law students from over 35 top schools across India have condemned BCI’s resolution on same-sex marriage as “ignorant, harmful and antithetical to the Constitution... ”. (Times of India, April 26, 2023). Consensus building, as the court suggests, is central to achieving social and legislative change.
“I must get the recognition of my union...”
Rejecting the above arguments, petitioners are urging the court to accept that constitutionally guaranteed rights include the right to same-sex marriage, and are seeking the court’s protection and guaranteeing of that right. They argue that if rights have to be identical, “then I must get the recognition of my union the same way as the recognition of union of two other heterosexuals.”
As many have warned, the hearing’s outcome will have significant ramifications for the country with reverberations felt across the world wherever same-sex couples of Indian heritage reside. According to the Times of India article cited above, gay couple Vaibhav and Parag, who married in Texas in 2017, is one such couple to be impacted. Appearing digitally before the Bench, they underlined the injustice of being deemed legally married in Texas, but instantly losing their marital status upon landing in India with harmful implications also for their adopted infant child.
The need for a nuanced, delicate balancing
An insistence on blanket constitutional protection by invoking human rights, for decisions about abortion or same-sex marriage, which are simultaneously social and intensely personal, needs to be reexamined while considering deeply ingrained socio-religious mores. Imposing massive society-wide changes too soon in the name of performative progressiveness can cause disorder and destabilization in traditional societies, such as the one in India.
It is customary to condemn Indian society as close-minded, intolerant, even reactionary or fascist. Colonial perceptions of India have, invariably, trashed India as backward rather than applauding it as a multifaceted culture with demonstrated proclivity to absorb and blend, although always so at its own pace and not through imposed upheaval.
Hindu mythology features deities and heroes who freely change gender or merge to form gender- neutral identities. Cross-dressing and sexual encounters, along with intersex or third-gender characters, occur in religious literature and folklore. Cross-dressing performances are popular entertainment at Indian weddings even today.
The above examples, unmistakably, point to a more progressive Indian society compared to the colonial mindset that gets imposed on it. Let's not forget, the “credit” for criminalizing same-sex relationships in the first place belongs to the British Raj.
This is not to say that judicial intervention is not sometimes necessary to push a society forward. Progressive-minded Indians, including legal scholars, judges, lawyers, media members, legislators, and average persons, are demanding the legitimization of same-sex marriage. Even parents of non-binary Indian children are expressing their love for their kids in public, and in an open letter, have urged the Chief Justice “to throw open the gate of marriage equality to their children too.” Activists speaking on behalf of India’s trans community are also pleading to the Court to acknowledge their right “to live a married life that is safe and wherein family is considered a right, not a privilege.”
In the long run, a judicious incremental approach, rather than a radical one, may turn out to be fruitful. More open-minded judicial interpretation may help shake the apathy and resistance from legislators. Not least—holding legislators’ feet to the fire will minimize obfuscation and ensure both speed and accountability in enacting fairer marital laws in India.
Neera Kuckreja Sohoni holds a master’s degree in history and a PhD in economics. Her articles have been published in leading newspapers in the U.S. and India.
Enjoyed reading Khabar magazine? Subscribe to Khabar and get a full digital copy of this Indian-American community magazine.
