LGBTQ+ Rights | A case for marriage equality

On March 13, the Supreme Court of India referred a batch of petitions seeking legal recognition for same-sex marriages (or marriage equality) to a constitution bench. The Union government opposed these petitions, stating that it is not comparable to the Indian family unit, and that recognition of marriages is a legislative function, not a judicial one.
Legal scholars have argued that not granting legal recognition to same-sex marriages violates fundamental rights guaranteed by the Indian Constitution, such as Articles 14, 15, 19, and 21. They cite the NALSA judgment (2014), the Puttaswamy judgment (2017), and the Navtej Singh Johar judgment (2018) as the most consequential in this regard.
While marriage equality has a strong constitutional case, socio-cultural consensus is also important.

Opponents of marriage equality wrongly assume that marriage has remained unchanged throughout history. Inter-caste, same-gotra, and inter-religious marriages all of which are legally and somewhat socially accepted now challenged traditional notions of marriage at some point. In a strict constitutional or civic sense, marriage is the legally recognised union of two people as partners in a personal relationship. Marriage is a culturally universal institution that is seen as the socially acceptable way to form a committed partnership, and married couples usually enjoy more social support and acceptance than unmarried couples.

The institution of marriage also enables other rights and protections such as inheritance rights, spousal support, and the right to make medical decisions for each other. Furthermore, married individuals can nominate their spouses to receive their social security, insurance, or other financial benefits, which unmarried couples are not eligible for. Legal recognition of marriage also provides protections for both parents and their children, including the right to make decisions about their children's upbringing, custody, and visitation.

LGBTQ+ individuals deserve to enjoy all these rights along with the basic human right of being able to marry and start a family, without any discrimination. Marriage equality is also likely to increase acceptance of the LGBTQ+ community, as seen in the West, where recognition and equal rights have led to greater social acceptance.

The success of LGBTQ+ rights movements in the West has increased visibility of the community. However, this has also led to a misconception that members of LGBTQ+ community are just a product of Western influences. The community has been a part and parcel of Indian civilisation and culture for millennia, as shown through several recorded mentions of such individuals either directly or indirectly in ancient and medieval Indian literature and history. The chief of Rashtriya Swayamsevak Sangh (RSS), Mohan Bhagwat, has acknowledged this. LGBTQ+ individuals may not have been a politically-organised group in the past or felt comfortable enough to express themselves freely. But their existence can’t be denied, and they must be accepted as an integral part of Indian society.

Even if the principle of marriage equality is accepted, there are some differences in how this could be operationalised. Some petitioners in the current case in the apex court have argued for recognition of same sex marriage through reinterpretation of the Special Marriage Act, 1954, while others have argued for allowing for the same under Hindu Marriage Act, 1955. Enactment of a gender-neutral Uniform Civil Code, which would comprehensively cover various aspects like adoption, inheritance, divorce, etc., would’ve been the best way to achieve marriage equality. However, in absence of a UCC, the second-best option would be to allow same-sex marriage under the Special Marriage Act, 1954, which avoids interfering in religion-based personal laws while granting the members of the LGBTQ+ community basic human right to have the right to marry and to raise a family.

Asian countries have also been discussing LGBTQ+ rights and acceptance of marriage equality, with Taiwan being the first to grant marriage equality, in 2019. Japan, Thailand, and the Philippines are also actively debating same-sex marriage or civil unions. In India, decriminalisation of homosexuality in 2018 was met without significant protests and several mainstream films with LGBTQ+ individuals or storylines have been well received by audiences, indicating a positive shift in public attitude towards LGBTQ+ issues.
There are many legal, financial, moral, or humanitarian arguments to move towards marriage equality. However, the reason behind legalisation of same-sex marriage in India should be straightforward: it is the constitutional duty of the State and civilisational responsibility of society to ensure dignity of life for a significant section of citizens.

(Saurabh Todi is research analyst, Takshashila Institution.)