The tricky issue of marriage equality

Should India’s apex court decide that it is time for this, or should the legislature do so when it believes it is time? That’s a tricky question on rights that are important for every individual and couple, including same-sex ones

In line with its earlier submissions on same-sex marriages, the Centre, in an affidavit in Supreme Court (SC) on Sunday, said that legal validation of such unions could cause “complete havoc” with the delicate balance of the country’s personal laws and current societal values, and that the legislative policy in India recognises marriage as a bond only between a biological man and a biological woman. Opposing a bunch of petitions seeking recognition for same-sex marriages, the Centre asserted that it is “impermissible” for the SC to change the legislative policy that is embedded in religious and societal norms and pointed out that the acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws in India.

In a historic verdict in 2018, the SC decriminalised homosexuality by scrapping a colonial-era law. But despite the ruling, members of India’s lesbian, gay, bisexual and transgender community complain about a lack of societal acceptance and discrimination. (Sushil Kumar/HT PHOTO)

In a historic verdict in 2018, the SC decriminalised homosexuality by scrapping a colonial-era law. But despite the ruling, members of India’s lesbian, gay, bisexual and transgender community complain about a lack of societal acceptance and discrimination. Activists say that while the ruling affirmed their constitutional rights, without legal recognition of being married, they are denied basic rights, such as those linked to medical consent, pensions, adoption or even simpler things such as club memberships for same-sex couples.

Personal sensibilities of people, prejudice and dogmas cannot override the basic principle of the Constitution: all citizens are equal. But same-sex marriage is a sensitive subject in a socially conservative society. For instance, more than a dozen states in the US continued to bar them till a 2015 US Supreme Court ruling (and even in 2008, in the run-up to his first Presidency, Barack Obama opposed them).

The question then is: Should India’s apex court decide that it is time for this, or should the legislature do so when it believes it is time? That’s a tricky question on rights that are important for every individual and couple, including same-sex ones.