March 25, 2023
Hello and welcome to All Indians Matter. I am Ashraf Engineer.
From mid-April, the Supreme Court will begin hearing arguments on whether same-sex marriages should be legal in India. If it rules in their favour, India would become only the second Asian nation after Taiwan to recognise same-sex marriage – the logical next step to the decriminalisation of gay sex. It would make India the biggest democracy with such rights for gay couples. However, there’s a mountain-sized problem: the ruling BJP opposes same-sex marriage and, in a filing in the Supreme Court, said it is not compatible with the concept of an “Indian family unit”. This, it insisted, consists of “a husband, a wife and children, which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two – who are reared by the biological man as father and the biological woman as mother”. This smacks of primitiveness and a need to control citizens’ private lives. India legalised gay sex in 2018. It should legalise gay marriage now. It’s time.
In September 2018, a five-judge Constitutional bench of the Supreme Court read down Section 377 of the Indian Penal Code, making gay sex legal in India. That gave further momentum to the demand for expansion of legal rights for the LGBTQ community. So, while hearing the petition to legalise gay marriage, the Supreme Court rightly said that the debate is of “seminal importance”.
Since 2018, there have been at least 15 pleas filed in an effort to legalise same-sex marriage. At least one of them says that, without it, the couple’s personal liberty is curtailed. If they could marry legally, they argue, the practical difficulties they face would disappear. What are these difficulties? Presumably matters like owning property jointly, having joint bank accounts, adopting children together, etc.
The government, however, echoed Prime Minister Narendra Modi’s view that such unions are not comparable to those between a man and woman, which it said was a “holy union [and] a sacrament”.
Last year, it said in a court filing that same-sex marriages would cause “complete havoc with the delicate balance of personal laws in the country”. Sushil Modi, a BJP MP, told Parliament that same-sex marriages would be “against the cultural ethos of the country” and a decision on that should not be left to “a couple of judges”.
The Supreme Court, of course, has indicated it won’t be cowed down.
The LGBTQ community’s stand is that refusing to legalise same-sex marriage deprives such couples of the right to equality and opportunities enjoyed by married heterosexual couples.
In India, marriage is largely governed by laws based on religious beliefs and a secular law called the Special Marriage Act used mainly by inter-faith couples. None of these laws permit same-sex marriages.
This means that LGBTQ couples can’t jointly own with or inherit property from their partners. Gay and lesbian couples can’t have children born through an Indian surrogate mother. And they can only apply for adoption as single parents. It’s no wonder they feel that legal recognition of same-sex marriage would be a giant step towards equality.
Let’s take a closer look at the arguments of those against same-sex marriage.
First of all, what they offer is more of a religious argument than a political or legal one. Most of those who oppose it say it is unnatural and immoral. Some say it’s not natural because it cannot result in biological offspring, others say God’s will is seen in his creation of Adam and Eve. He did not, they say, create two men or two women. The other arguments broadly say that same-sex marriage is against Indian culture.
These arguments are ridiculous. If same-sex marriages should be illegal because they cannot result in children, we should also outlaw heterosexual marriages of people over 60 because they’re not going to produce children either. Love is love. If two adults feel it for each other and want it enshrined legally, nobody should have the power to stand in their way. Same-sex marriage harms no one, so the government has no business interfering in it.
So, it might be worth asking if the prevention of same-sex marriage violates the right to liberty guaranteed under Article 21 of the Constitution.
Also, it’s unreasonable to oppose it. The days of legislation creating a code of morality for marriage should be behind us. The arguments for such a code are fuzzy and primitive.
There are any number of studies that show that same-sex love is common. A study in rural India by the United Nations Population Fund found that “male-to-male sex is not uncommon. In fact, a higher percentage of men in the study reported having male-to-male sex than sex with sex workers. This was true of both married as well as unmarried men. Close to 10% of unmarried men and 3% married men reported having had sexual intercourse with other men in the past 12 months”. The survey covered 50 villages in five districts of five states with close to 3,000 respondents. I know that this is about sex and not marriage but, if gay sex is so common, gay marriage should not be seen as unusual either.
Marriage is the legal union of two consenting adults. The LGBTQ community comprises human beings, just like you and me, and they have the same desires as heterosexual humans. This includes the need to commit and share a legally sanctioned relationship. For many, marriage is the ultimate step in love to their partner and there is absolutely no reason gay people should be deprived of it. Who are you, I or the government to sit in judgment? Let gay people make their own choices.
When I discussed Section 377 on this podcast, I had said that LGBTQ rights were not a sexual rights matter but a human rights matter. Human rights imply that so-called cultural norms can’t be used to deny legal rights to groups that don’t share your cultural or political beliefs. There is a universality to human rights and we have to accept that.
Our Constitution gives us the right to pursue whatever fulfils us. That includes choosing a partner of our choice. So, other than prejudice, what argument can there be against two willing adults entering a legal union? It’s what gives them the rights that heterosexual couples enjoy. Two people committing in this manner to a lifetime together does not destroy the foundations of marriage. If anything, it strengthens that foundation.
In this day and age, the only way for societies to evolve and indeed survive is to be more open, to be more inclusive. Denying rights to a group based on its sexuality helps neither society nor democracy. I’ll repeat myself: same-sex marriage rights are inextricably linked to human rights.
The government needs to get out of the way.
Thank you all for listening. Please visit allindiansmatter.in for more columns and audio podcasts. You can follow me on Twitter at @AshrafEngineer and @AllIndiansCount. Search for the All Indians Matter page on Facebook. On Instagram, the handle is @AllIndiansMatter. Email me at email@example.com. Catch you again soon.