Marriage equality in India - Part 3

꧁Naina࿐ 07/06/23

Marriage equality in India - Part 3-[IMG=4DN]

[Ci]The government has called same sex marriage a “mere urban elitist concept

The government has called same sex marriage a “mere urban elitist concept far removed from the social ethos of the country” and told the court that it will undermine social and religious values, while religious leaders have raised concerns of what same sex unions would mean for the “natural family order.”

Quoting directly for this news article

H͜͡e͜͡l͜͡l͜͡o͜͡ R͜͡a͜͡i͜͡n͜͡b͜͡o͜͡w͜͡ P͜͡e͜͡o͜͡p͜͡l͜͡e͜͡

I began this post two and a half years ago and was kind of expecting back then for this to be a slow long winding road.

It's about time I bring you an update as much has happened since my last update. And yet one might argue, nothing actually has happened

(I do recommend you give previous posts on this subject a read)

Marriage equality in India

Marriage equality in India - Update

° Between January 2021 to November 2022 as many as 9 petitions were filed for recognition of same sex marriages were filed in various High courts of India.

° Also in November 2022, Union Government of India sought to transfer all such pending petitions for t hearing to the Apex court of India, the Supreme Court.

° This transfer took place in January 2023 and in March 2023, the matter was referred to as having constitutional importance and was reffered to a five judge constitutional bench

° A 10 day hearing on the matter happened between 18th April to 11th May this year.

╰─➤ ✎ Early on day 1 of the hearing courts dismissed government claims that this matter should be decided in Parliament as this is not a judiciary matter

The day also saw the court limiting its own premises of jurisdiction to look at accomodating such marriages by making the current Special Marriages act to be gender neutral

╰─➤ ✎ Day 2 saw the opening 'elitist' (referred to in the opening of this blog) comments by the government to be not backed by any sort of data.

"[For non-heterosexuality] to be branded as urban elitist shows absolute lack of grace [on the part of the State].”

╰─➤ ✎ Day 3 saw the court observing that by decriminalizing homosexuality same sex unions have progressed into a " Marriage like" Union

“[The] law [has] progressed sufficiently to contemplate that the existence of binary gender may … not [be] necessary for the definition of marriage.”

╰─➤ ✎ On day 5, the Apex court refused to buy into an earlier claim by National Commission for the Protection of Child Rights, opposing homosexuals to be able to adapt a child, stating this would endanger lives of such children.

Respondent in the case, solicitor general of India, was quoted as arguing “Right to love, right to cohabit, right to choose one’s partner and right to choose one’s sexual orientation is a fundamental right. But there is no fundamental right to seek [legal] recognition of that relationship as marriage or by any other name.”

To which, chief justice of India, responded as "Once you recognise there is a [fundamental] right to cohabit … then to say you cannot seek any legal recognition at all [cannot be the case]… There is a corresponding duty on the State to at least recognise that all the incidents of social cohabitation must find recognition in the law.”

╰─➤ ✎ Day 7 saw the government adapting a stance that the issue could be looked to be accommodated isitratively and form a committee to hear and look into issues faced by the community.

The court asked petitioners to consider if a ruling from the court would be in the larger interest of community, as amending SMA would not serve the entire purpose in its entirety.

“The vast majority of [non-heterosexual] young people I have spoken with want to get married… We say we want to get married. Why should we be second-class citizens?”

╰─➤ ✎ On day 9 of the hearing, the focus was back on how much should the court provide a ruling / declaration on and what should be left to the purview of the parliament, Given the complex repercussion on other personal laws of the land.

╰─➤ ✎ Day 10, the final day, saw the majority of the petitioners lobbying for some acvomodability of non heterosexuals unions through changes in Special marriage Act. While some petitioners were of the opinion that a constitutional judgement by the court should be pushed for.

“The vast majority of [non-heterosexual] young people I have spoken with want to get married… We say we want to get married. Why should we be second-class citizens?”

Finally, Supreme court reserve it's judgement on the matter. With summer vacations until 30th June, a judgement is expected on the matter once it opens up again. The court itself has not indicated any date for the same.