India’s highest court on Tuesday heard the final arguments in a case to legalize same-sex marriage, marking a historic moment for LGBTQ rights in the country that could become the second in Asia to recognize gay marriage.
The landmark hearing comes at a time when the Indian Supreme Court has shown more willingness to challenge discriminatory practices in recent years, such as striking down a ban on gay sex and mandating the legal recognition of transgender people.
“We’re just asking for basic dignity,” Abhay Dang told Semafor, who, along with his partner Supriyo Chakraborty, are one of several couples behind the petition to legalize same-sex marriage. “The momentum is clearly there. We do have a lot of hope in our constitution and in the judiciary.”
Advocates for the petitioners on Tuesday asked the court to acknowledge that the framework of many Indian laws inherently discriminate and target LGBTQ people, and codifying marriage equality is one of the first steps in truly holding all citizens equal.
“The Constitution doesn’t make two classes of people, but only one class- the people of India,” said Senior Advocate Mukul Rohatgi. “That mindset continues and therefore it’s important for the court to step in.”
The justices appeared to push back against the government’s argument that a marriage is between a binary gender couple, acknowledging that the concept of a biological man and woman is not “absolute.”
“It’s not just a question of what your genitals are,” said Chief Justice Dhananjaya Y. Chandrachud.
Dang, one of the petitioners, said that he and Chakraborty began to spearhead the petition after they both contracted COVID-19 and realized just how little rights they had as couple without legal recognition of their relationship.
“If somebody were to pass away one fine day without any warning, the other partner has no rights,” he said. “Perhaps not even the right to carry out the funeral of your better half.”
Utkarsh Saxena, one of the lawyers arguing for recognition and who is also one of the petitioners alongside his partner Ananya Kotia, told Semafor that queer relationships and identity have long been represented in Indian society and religious scriptures, but it was British colonial rule that enacted many anti-gay laws and built a homophobic culture. That legacy, however, appears to be changing.
“This is still a continuous process of decolonization and we’re only reclaiming our original sort of heritage and civilizational roots on this,” Saxena said.
India has several different laws that codify marriage rights for people of different faiths, but the petitioners plan to primarily focus on the Special Marriage Act of 1954 which sets up the civil marriage process, Saxena said. Their arguments are centered on proving that these secular statutes should be applicable regardless of gender or sexual orientation, he added.
“It’s not just about accommodating our understanding of it today, but also preparing the laws for future changes on this,” he said.
But his petition is going a step further by asking that certain provisions of the marriage act change so that access to same-sex marriage is also ensured.
Saxena pointed to a “notice and objections” clause which mandates that photos of a couple who apply for a marriage license be publicly posted, which then gives the public 30 days to submit any objection to the marriage.
“These are precisely the communities that need privacy, and don’t need that kind of public scrutiny and exposure,” he said. He said that their petition also seeks the “legal architecture to be modified so that vulnerable communities don’t face any kind of threats if they choose to get married.”
“I never imagined that I would be up doing something like this. Growing up was difficult. It was a depressing time. I never thought I would be in a position to start a family. And the fact that I’m now here in this position where I can openly file these petitions and be celebrated by my friends and family and receive so much love and support is hard to believe. I feel so fortunate that I’m in this position.”
— Utkarsh Saxena
The View From the Indian Government
India’s government led by Prime Minister Narendra Modi is opposed to marriage reforms, describing marriage equality as ”urbanist elitist views" in a Monday filing, according to documents accessed by Reuters.
“The petitions, which merely reflect urban elitist views, cannot be compared with the appropriate legislature which reflects the views and voices of far wider spectrum and expands across the country,” the government said.
The government urged the court to “take into account broader views and voice of all rural, semi-rural and urban population, views of religious denominations.”
Recent estimates suggest that India could have about 135 million LGBTQ individuals — or about 10% of the country's population.
Activists say that while much of India remains a conservative country, there has been a significant change in cultural attitudes over the last decade, with queer issues and stories now more openly discussed and represented in media, including Bollywood movies.
Court rulings over the last decade have also codified LGBTQ rights. In 2014, the Supreme Court ruled that the government must create a third gender for the transgender community. And the court in 2018 overturned a colonial-era law that categorized gay sex as an "unnatural offense."
Arguments and rebuttals from the government will continue throughout the next two to three weeks before the court begins its summer recess. Saxena said that the earliest a decision could be made will be in July, but that it was difficult to predict.
He said that the legal battle will continue if the court rules in favor of the petitioners but does not mandate changes to other marriage-linked legal matters, like adoption.
Dang and Chakraborty also told Semafor they plan on advocating for modifying workplace discrimination provisions if the court rules in favor of same-sex marriage.
“I think is the first right that hopefully opens the door for all these other rights as well,” Dang said.