02, May 2023 | Tanya Arora
“History owes an apology to LGBTQIA+ people and their families for the ignominy and ostracism they have faced”
Since April 18, all eyes have been on the Supreme Court of India as it hears a batch of petitions seeking legal recognition for same-sex marriage in India, or seeking equal marital rights.
A five-judge constitution bench of the Supreme Court comprising of Chief Justice of India DY Chandrachud, and Justices SK Kaul, Ravindra Bhat, Hima K
Online live hearings have so democratised a normally opaque process with unconfirmed reports suggesting that viewership on Netflix, the OTP platform has dipped as a result!
Same-sex and queer couples from around the country have approached the Supreme Court with a plea stating that same-sex and queer marriages should be legalised under the Special Marriage Act that currently allows for inter-religious marriages amongst others. Through this petitions, rights ancillary to marriage, such as family insurance, divorce, adoption, maintenance, succession are also being demanded by a number of petitioner.
The petitioners have made their arguments before the bench, and the union government’s arguments are still being heard. It is worth noting that the two days before the bench was scheduled to hear the petitions, the Centre had submitted a 102-page document opposing the petitions filed by couples seeking equal marital rights, deeming it an “urban elitist concept far removed from the social ethos of the country.” The Modi-led union government told the Supreme Court that the petitioners were advancing “mere urban elitist views for the purpose of social acceptance” by demanding equal marriage rights. According to this untested stance, neither uncodified personal laws nor codified statutory laws recognise or accept marriage between two individuals who are not biologically male and female. The union government had also stated that if the demands of the petitioners are heard and met, it will wreak “complete havoc” on the delicate balance of personal laws and “accepted societal values.” Finally, the union government represented by none less than, Solicitor General, Tushar Mehta argued that the issue cannot be decided by a Court of Law and that it is up to the legislature to amend the law, if at all.
Jamiat Ulama-i Hind, a representative of Muslims, has also filed their objections against the petitions, claiming that the pleas of the petitioners are an attack on the family system and violate all personal laws. “This concept of same-sex marriage goes to attack the family system rather than making a family through this process,” it had said. Jamiat is being represented by Senior Advocate Kapil Sibal, and is yet to be heard.
Even though this case is still being heard, the “opposition” views being expressed against the equal marriage rights petitions are no longer limited to the court or the parties to the petitions, with many groups voicing their opposition, making baseless claims in desperation, and asking the Supreme Court to simply, not hear the said petitions.
While the petitioners, queer community and LGBTQ+ activists have to hear the misinformed, downright derogatory arguments being made by the the union government, vociferously if ridiculously put by Solicitor General Tushar Mehta, there is another lively debate being conducted outside of the court where government agencies and mouth pieces, far-right religious leaders and groups of citizenry are strongly opposing the expansion of equal marital rights.
Opposition by the Bar Council of India
On April 23, a Sunday, the Bar Council of India (BCI) passed a resolution opposing legal recognition of same-sex and queer marriages, requesting that the Supreme Court refer the matter to Parliament because it would have far-reaching implications for socio-religious traditions. The BCI self-appointed themselves to be the “mouthpiece of the common man,” claiming that the legislature is “truly reflective of the will of the people” and that “more than 99.9% of the people in the country” oppose same-sex and queer marriage. The resolution further said that any decision by the Supreme Court in favour of the petitioners in the case will be “treated as being against the country’s culture and social religious structure.”
Now, the BCI is a statutory body who’s regulatory and representative mandate for the legal profession includes, among other things, establishing standards for professional conduct as well as protocol for advocates, protecting advocates’ rights, privileges, and interests, and advocating for and promoting law reform. The council has so far not been pro-active in carrying out its function of promoting and supporting any sort or kind of legal reform by issuing this unnecessary and misinformed resolution with unsubstantiated claims. In doing so, the statutory body has not lived up to its mandate under the Advocates Act of 1961. More importantly, it questioned the Supreme Court’s fundamental role in preserving constitutional principles in their true spirit and entirety. Furthermore, the BCI’s lobbying of legislative primacy in the matter condemns its own queer members, some of whom are openly queer and have had to deal with homophobia in denial of being offered a judgeship, such as Advocate Saurabh Kripal, as well as the larger LGBTQIA+ population, to suffer a deprivation of freedoms and rights as a consequence of legislative inaction.
The Council also departed from its responsibility to promote law reform by opposing a judicial review of marriage laws, specifically the Special Marriage Act, which sought to recognise unions that did not conform to what different communities held to be “acceptable”. The said resolution was criticised by many groups and individuals. Queer collectives from 36 Indian law schools, including National Law University Delhi, Faculty of Law, Delhi University and Gujarat National Law University, comprising of more than 600 students, condemned the BCI resolution as “ignorant, harmful, and antithetical to our Constitution and the spirit of inclusive social life,” demonstrating the BCI’s lack of understanding of its mandate. In a document titled “Representation against the bar council of India’s resolution on marriage equality”, the students said they strongly condemn the BCI’s “regressive and queer phobicresolution on marriage equality. The statement also added: “It (BCI resolution) attempts to tell queer persons that the law and the legal profession have no place for them. We, the undersigned, are queer and allied student groups across Indian law schools.”
A strong worded critique of the BCI’s resolution was also expressed by Trinamool Congress MP Mahua Moitra who slammed the BCI for urging the Supreme Court not to hear the same-sex marriage case and for its ‘99 percent Indians opposing it’ remark. Moitra addressed the BCI in a series of tweets, saying “you are oath-bound to protect constitutional morality, and not popular sentiment. Gentlemen – have you truly lost your minds? Even if 1 person’s freedom is encroached on, SC is bound to hear it,” the TMC MP said. She also brought forth the male-dominated culture of the BCI and wrote in another tweet, “India world’s largest democracy with 49% women population. Bar Council of “India” however, is an all male body which hasn’t held elections for the longest time. And BCI lecturing the Supreme Court on what “99% of Indians want” Gentlemen, enough already. Zip it.” She also said, “Maybe if BCI held timely elections you wouldn’t even be in your seats in your little boy’s club with no women. Shame!”
On April 28, the Supreme Court Bar Association (SCBA) also passed a resolution condemning the Bar Council of India’s statements opposing same-sex and queer marriage legalisation, as well as the hearing and decision-making process taking place in the Supreme Court of India. In their resolution, the SCBA stated that it was “highly inappropriate of the Bar Council of India” to oppose the same sex case hearing because it is the Supreme Court’s right to decide whether the matter should be adjudicated by court or left to parliament.
Opposition by other parties and agencies
It is essential to note that while the Supreme Court is not bound to consider the resolution of the BCI, its corrosive effects cannot be ignored. The openly homophobic resolution passed by the BCI rolled the stone, and soon enough, more agencies and organisations came in support of the BCI and the government. A day after the issuance of the BCI resolution, the Delhi’s District Court Bar Associations also expressed their displeasure on the day-to-day proceedings on a batch of petitions presently examined by the Constitution Bench of Supreme Court pertaining to ‘marriage equality rights for LGBTQIA+ community’. It said that the social ramifications of the proceedings before the Supreme Court are colossal and have the “potential for an unintended impact on the social fabric”.
In a rare show of unity, leaders from all of India’s main religions (the male leadership that us!) – Hindu, Muslim, Jain, Sikh and Christian – also opposed same sex union, with several of them insisting that marriage “is for procreation, not recreation”.
The Vishwa Hindu Parishad (VHP), a far-right extremist group, with a record for aggression and violence against minorities, even causing disharmony, also took it upon themselves to criticise the Supreme Court, said the “haste” with which the Supreme Court is disposing of the petitions for legal recognition of same-sex marriages is not appropriate. The “Hindu-tva” body, which has the support of the current government at the centre, said the apex court should have sought the opinion of religious leaders and experts from diverse fields before launching on this constitutional challenge!
End April 2023, to top it all, 21 retired high court judges wrote an open letter saying allowing same-sex marriage would have a “devastating impact on children, family and society”. They added that it could increase incidence of HIV-Aids in India and expressed concern that it could “negatively affect the psychological and emotional development of children raised by same-sex couples”.
On April 27, more than “120 eminent citizens,” including retired high court judges and former bureaucrats, wrote to President Droupadi Murmu to express their opposition to what they called “highly objectionable attempts” to legalize same-sex and queer marriages. They claimed that same-sex behavioral
Former CAG Rajiv Mehrishi, former home secretary L C Goyal, former foreign secretary Shashank, former RAW chief Sanjeev Tripathi, Justice (retired) S N Dhingra, and Justice (retired) Lok Pal Singh were among those who signed the letter.
They stated that it was critical to advise the Supreme Court of the precise estimate and outcome of such a “culturally disastrous” step in the name of a “ground-breaking approach.” They claimed that discussion about human institutional relations such as marriage is “essentially a legislative function,” and that courts should “refrain” from creating, recognising, or demolishing the institution of marriage through judicial interpretation or by striking down or reading down the existing legislative framework for marriages. They also stated in the said letter that it was “widely appreciated” that same-sex relationship “can’t create long-term or stable institutions”.
On April 26, the Union Law Minister Kiren Rijiju also said that an important matter like the institution of marriage should be decided by people of the country and that courts are not the forum to settle such issues. Referring to the Constitution bench of the top court hearing the matter, Rijiju said, “If five wise men decide something which is correct according to them — I cannot make any kind of adverse comments against them — But if people do not want it, you cannot impose things on the people…”
The views of the law minister came as no surprise as he has been indulging in an aggressive power battle with the highest judiciary, having the backing of the BJP government, with the current CJI of India. But what is disappointing is that, with the exception of the CPI(M), all the political opposition parties are keeping a prudent silence on the issue of legalising same-sex and queer marriages.
While it is necessary to keep in mind the opposing views being put forth and language being used to when it comes to expanding basic right to a community which has existed as a part of India since time immemorial, it is also essential to focus on the ones showing the community support while they fight this fight.
The support shown for the petitioners in their fight for marriage equality and ancillary rights
The petitioners for marriage equality received a significant boost when the Indian Psychiatric Society (IPS), the country’s leading mental health group representing over 7,000 psychiatrists, issued a statement in their support.
“Homosexuality is not a disease,” the IPS stated, adding that discrimination against LGBTQ+ people could cause “further mental health issues in them.”
The Delhi Commission for Protection of Child Rights (DCPCR) also supported the petition, stating that the federal and state governments should take steps to raise public awareness about the “normalcy” of same-sex family units. Multiple studies on same-sex parenting have shown that same-sex couples can be good parents, according to their report. The statement of the IPS carries a certain amount of weight because the Supreme Court referred to a similar statement supporting gay sex decriminalization in its decision in 2018.
On April 25, a group of over 400 parents from ‘Sweekar-The Rainbow Parents’ wrote to Chief Justice of India (CJI) D Y Chandrachud urging that their LGBTQIA++ wards be granted the right to “marriage equality”. ‘Sweekar-The Rainbow Parents’ is a group formed by the parents of Indian LGBTQIA++ wards with the aim of supporting each other to accept one’s child fully and be happy as a family.
“We are appealing to you to consider marriage equality,” the letter said. The letter also said that “We desire to see our children and children-in-law find final legal acceptance for their relationship under the Special Marriage Act in our country. We are certain that a nation as big as ours which respects its diversity and stands for the value of exclusion, will open its legal gate of marriage equality to our children too. We are growing old. Some of us will touch 80 soon, we hope that we will get to see the legal stamp on the rainbow marriage of our children in our lifetime.”
The full letter of support can be read here:
Parents of LGBTQIA+ members write an open letter to the Chief Justice of India DY Chandrachud appealing that marriage equality case be considered by #SupremeCourtofIndia since they desire to see their children and children-in-law find legal acceptance in the society… pic.twitter.com/o0n1JUAIQe
— Bar & Bench (@barandbench) April 25, 2023
A human rights issue has become a central debate in our country now, where one set of persons are demanding legal recognition and support as a marginalised community. This community is demanding equal and basic rights from the court, while the other side is demanding for their continued oppression and suppression in the name of “culture and marital sanctity.” The Indian Constitution gives all citizens the right to marry a person of their choice and prohibits discrimination on the basis of sexual orientation and their petition should be allowed since “constitutional morality is above social morality”.
And yet, the queer community has had to approach the highest court of law and hear people oppose their demands stridently. They are making an impassioned please for simply, equal rights.