Updated by Faith Barbara Namagembe at 1037 EAT on Wednesday 15th March 2023.
The Indian government has opposed the recognition of same sex marriage in response to petitions filed in the Supreme court seeking their legalization, but petitioners and gay rights activists remain hopeful of eventually securing the milestone right for the gay community.
Calling it a matter of “seminal importance” the court set up a five-judge panel on Monday to hear final arguments starting April 18th. The government led by the Hindu nationalist Bharatiya Janata Party has told the court that gay marriage is not compatible with the concept of an Indian family unit, and it should be left to parliament to enact any change in marriage laws.
“The notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex. This definition is socially, culturally, and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation,” the Law ministry said in a court filing reported by domestic media.
The court cannot be asked “to change the entire legislative policy of the country deeply embedded in religious and societal norms,” it said.
The government’s stance did not come as a surprise – gay rights activists had expected resistance from the government to legal marital status for gay couples.
“There is that deeply held belief that culturally we in India look at the issue differently and that this is against our moral values and ethos. The government had a similar reaction when petitions were filed to scrap the law that banned gay sex,” points out Anjali Gopalan, executive director of Naz Foundation, who had been at the forefront of the battle to overturn a decades-old archaic law that outlawed homosexuality until 2018.
“But there was no uproar or upheaval in society when homosexuality was legalized, so I don’t know why we continue to peddle this line. I think the environment has changed,” says Gopalan.
Winning that battle over four years ago became a turning point for India’s LGBTQ community as it worked to overcome decades of stigma and isolation. Although India remains a conservative country, a slow acceptance of same sex relationships has been growing among some sections of society. Some colleges have held talks on gender identity, queer literature festivals have been organized and many young people in gay relationships are open about their sexual leanings.
Some like Abhay Dang who lives with his gay partner, Supriyo Chakraborty, in the southern city of Hyderabad have even held “commitment ceremonies” emulating many of the customs of a regular Indian wedding. He is one of the petitioners in the Supreme court seeking legalization of gay marriages.
The government’s opposition to gay marriages is “a little disheartening” Dang told VOA. “India is now looked up to by many countries and it would have been a great precedent for the government of a developing country to take a stand in favour of same sex marriage. We could have been ahead of the curve on this one.”
Despite gradual shifts, Asian and most developing countries have been slow to grant LGBTQ rights – in Asia, Taiwan is the only country that recognizes same sex marriage. Across the world, about 30 countries recognize gay marriages.
And in India, opposition continues to the idea of gay marriage. In January, a group called the United Hindu Front protested outside the Supreme court, urging it to throw out the petitions, which it said were against Indian culture.
India’s top court has been supportive of gay rights — last year, the court expanded the definition of a family to include same-sex couples and ruled that such partnerships are entitled to social welfare benefits. Young gay couples like Dang and his partner are drawing hope from the position that the court has taken in the past.
We want legal recognition for gay marriages because there are a whole bunch of rights which marriage provides such as the right of inheritance and the right to take medical decisions for one another,” he points out.
“These are things that heterosexuals never have to think about, these difficulties they never have to face. Why do we have to go through it and be reminded all the time that we are less than equals. We are tired of it.”
A lawyer representing the petitioners, Abhishek Manu Singhvi told the court that the right to marry could not be withheld from anyone “solely on the basis of their sex, sexual orientation or gender identity.”
The hearings on the petitions seeking legalization of gay marriage, which the Supreme Court said will be livestreamed on its website and YouTube when hearings begin next month, will be watched anxiously by the LGBTQ community.
The community is prepared for a long-haul battle. “Ultimately, we have full faith in the court. We know that our constitutional values of equality are on our side. We are prepared for what it takes,” says Dang.
Activists echo such sentiments. “I hope the courts will not let us down, but I don’t think they will. They are our only hope,” says Gopalan.