In recent months, many Indian legal and political observers have closely watched how the Modi government would respond to more than a dozen petitions submitted by same-sex couples demanding marriage rights after influential right-wing organizations affiliated with Modi’s Bharatiya Janata Party (BJP) signaled an embrace — or at least a softening view — of LGBT rights.
In its affidavit submitted on Monday, the government argued that the notion of marriage “necessarily and inevitably presupposes a union between two persons of the opposite sex” and hinted that same-sex marriage was a Western concept that would be incongruous with traditional Indian values. The issue should be debated and legislated in parliament, not in the courts, the government argued.
The union of a man and a woman “is socially, culturally and legally ingrained into the very idea [of marriage],” the government’s affidavit said. “In our country … marriage necessarily depends upon age-old customs, rituals, practices, cultural ethos, and societal values … Western decisions sans any basis in Indian constitutional law jurisprudence, cannot be imported in this context.”
“Any interference with the same would cause a complete havoc with the delicate balance of personal laws in the country and in accepted societal values,” it added.
The government’s opposition comes at a time when the debate around LGBT rights has moved swiftly into Indian courtrooms and living rooms. In 2018, the Supreme Court decriminalized consensual gay sex and overturned a colonial-era law after a decade-long court battle. Same-sex relationships are also increasingly seen in Bollywood movies and there are swelling pride parades in cities like Mumbai, New Delhi and Bangalore.
And many politicians and influential organizations on India’s political right, including the Rashtriya Swayamsevak Sangh (RSS), the Hindu nationalist organization that is the ideological parent of the BJP, have increasingly offered mixed or even supportive messages on LGBT rights.
While RSS leaders have previously criticized gay relationships as unnatural and promoted by “ultra-Westernized elites,” some have appeared to soften their stance over the past decade, with prominent officials calling for a review of the colonial-era law criminalizing homosexuality before it was overturned in 2018.
This year, the powerful head of the RSS, Mohan Bhagwat said members of the LGBT community should have their “own private and social space.” In a January interview with an RSS-published magazine that sent ripples through India, Bhagwat said that even in Hindu scriptures, ancient Indian society addressed same-sex relationships “with a humane approach to provide them social acceptance.”
While same-sex marriage has evoked strong opinions from some BJP lawmakers, such as Sushil Kumar Modi, who called its advocates “left-liberals” wanting to “imitate the West and impose such laws,” many members of parliament from the party have actually been supportive of LGBTQ issues.
Anish Gawande, founder of Pink List India, which documents the views of Indian politicians on LGBTQ+ rights has found that 115 parliament members have made statements, votes, or submissions in support of queer rights, out of 161 total vocal members, with a majority of elected MPs supporting queer rights belonging to the BJP.
“The RSS and the BJP have been carefully deliberating their stance on this issue,” he said. “Yet their approach to queerness largely remains one of sympathetic acceptance rather than inclusion.”
While the rhetoric is no longer one of “unnatural” acts, Gawande said, “there is a long way to go to ensure recognition by the government. Today, you are free to live together, you are free to have sex. They will tolerate you, but you don’t have equal rights as a citizen.”
If the Supreme Court legalizes same-sex marriage, India would become the second country in Asia, after Taiwan, to do so. Legal analysts and lawyers say the high court is likely to rule in favor of the same-sex plaintiffs based on the judges’ remarks so far. The hearings before a panel of five justices are expected to open on April 18.
In one widely reported exchange in the Supreme Court on Monday, the government’s lawyer, Solicitor General Tushar Mehta, argued that legalizing same-sex marriage could have an impact on Indian children raised by same-sex parents.
The chief justice, D.Y. Chandrachud retorted: “But, Mr. Solicitor the adopted child of a lesbian couple or a gay couple does not necessarily have to be lesbian or gay.”
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