A New Era - the future of same-sex marriage in India

 

As India's Supreme Court discusses legalising same-sex marriage, activists and ordinary people are paying close attention. A favorable ruling could have far reaching effects.

But the decision will also require reform to all aspects of Indian law that imagine family life through male-female couples, including inheritance and guardianship laws.

 

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What is- A New Era and how far India has come?

Is it a new era for India, and will bring a significant change and progress within society or within an era or movement.

Indian LGBTQs are waiting patiently for that "New Era." Since 2004, they have fought to legalize same-sex marriage; making progress over time but encountering resistance at times. 

In May 2023, India's top court heard public interest litigation filed by two couples seeking equal rights who claim that state refusing to recognize their relationships as marriage violated their constitutional rights.

The decriminalization of same sex relationships was significant progress, and the activists continue to push for additional rights such as being able to inherit property or include their same-sex partners on insurance forms.

This case is currently before a constitutional bench headed by Chief Justice D Y Chandrachud for consideration by the Supreme Court, and could take up to six months for them to hear arguments and reach their verdict.

India has made remarkable advances in LGBT rights over recent years, most notably when its Supreme Court struck down Section 377 of its colonial-era penal code in 2013. Furthermore, constitutional protections were expanded for transgender people in 2014 and 2017 recognition of third genders were recognized. Finally in 2022 the court expanded privacy laws to include sexual orientation as an essential aspect of one's privacy and dignity.

Opposition of LGBTQ Rights

However, no guarantee can be given from India's supreme court on same-sex marriage; Bar Council of India passed a resolution when the case began, against same-sex marriage proceedings, warning that a favorable verdict might go against India's culture and religiousness structure.

The BJP-led government has not taken sides in the controversy surrounding same-sex marriage in India and can leave it up to the Supreme Court to determine its legalization or otherwise; activists and lawyers remain hopeful it will pass muster.

The Future of Same-Sex Marriage in India

India's Supreme Court began hearing petitions seeking legalization of same-sex marriage, in what would make India an outlier among Asian nations on gay rights issues. Lawyers for couples involved are confident of an encouraging ruling.

Akshat Agarwal, one of the lawyers representing couples involved, believes India has been increasingly accepting of individual freedoms over time. "This case is another part of that trend," according to Akshat. Earlier rulings by India's courts have dismantled restrictions on consensual gay sex, granted rights for transgender individuals marginalized within society and declared privacy an inalienable constitutional right.

This couple's battle for marriage rights mirrors an overall shift in attitudes toward LGBTQ people across the country. Urban areas have witnessed many openly celebrating their relationships and attending Pride marches in big cities; but rural areas often maintain stigma against same-sex relationships where discrimination, harassment and conversion therapy often persists, often from family members or strangers alike.

Gay marriage advocates hope a favorable court decision will further shift society, while opponents argue legalizing unions will have serious repercussions for children, specifically. They claim gay and lesbian couples won't be able to raise their kids in an ideal environment, and children of these couples could become more vulnerable to bullying at school. They also cite how same-sex couples would receive tax breaks, prompting governments to raise taxes in the future.

Advocates remain optimistic that, despite religious and political opposition to gay marriage, India's Supreme Court will rule in their favor. The chief justice has spoken in support of gay rights while ruling Bharatiya Janata Party does not oppose same-sex marriage; in contrast to what occurred in America which took more than 10 years, Indian lawyers and activists may shorten it by half!

No one knows when or how long it will take the Supreme Court to reach its decision; however, an estimated timeline would be six months. A five-judge Constitution Bench is handling this case and they should take an expansive view when considering both legal and social implications of any issues that come before them.

Legal Issues

Court case represents milestone for gay couples in an otherwise deeply conservative country, though progress continues slowly towards full social acceptance and freedom from discrimination, particularly rural areas. It also stems from gradual shift in which LGBTQ individuals have increasingly become visible within popular culture and pride marches in major cities; though many acknowledge there remains work to do before true safety for these communities is achieved.

The issue is complex and there are arguments on both sides. Petitioners contend that laws must reflect modern life and that same-sex marriage is just as valid as traditional marriage between a man and woman, increasing economic equality among LGBT community members, who suffer high rates of depression and substance abuse. They note this would also help decrease poverty levels within this population group.

Opponents of same-sex marriage argue that it violates religious freedom and will lead to the dismantling of family structures and social norms, with children raised by same-sex parents likely experiencing emotional and behavioral issues as a result. Furthermore, legalizing same-sex marriage could open up new unconventional relationships that undermine traditional family values.

Both parties are keenly watching what the Supreme Court decides. A positive ruling could make India the 35th country to legalise same-sex marriage and cause substantial social changes across society. Furthermore, activists hope it will open the way for other social reforms relating to adoption, immigration and inheritance laws.

While the government has yet to comment on this specific case, a senior attorney fighting for gay rights alleges that it attempts to "trivialise and demean" gay couples' requests. Furthermore, when making its ruling on this matter, the Supreme Court should take into account both economic impact and lives affected.

No one knows when the court will render its verdict; but for Kavita Arora and Ankita Saxena, who wish to get married someday, this fight hasn't ended yet; they plan to hold a commitment ceremony and hope they may ultimately be allowed legally tie the knot.

Social Issues

Due to India's rise in religious conservatism, many citizens are calling for equal treatment of sexual minorities; however, legal recognition for gay marriage remains uncertain in India, just like anywhere else globally.

The Supreme Court is currently deliberating and will issue its verdict soon on gay marriage in this country. If it grants equal status for same-sex couples, legalizing gay marriage could fundamentally alter family life across the nation and allow LGBTQ couples to open joint bank accounts, claim inheritances and benefit from tax deductions more easily, as well as eliminating having to provide close relatives as surrogates during medical emergencies or final rites for medical emergencies, among many other benefits.

Advocates hope the Supreme Court will strike a balance between protecting individual freedom and upholding religious traditions, in order to bolster India's international standing as an inclusive and progressive democracy and provide much-needed economic stimulus; particularly given that many companies advertise products with gay couples posing in front of historical landmarks while Bollywood movies often include scenes with onscreen homosexual kisses.

But the government does not support such an idea. According to an affidavit submitted to the Supreme Court by Prime Minister Narendra Modi's administration, marriage can only occur between biological men and women who marry one another legally, religiously and socially; any formal recognition of gay and lesbian unions would violate these values and should therefore be decided by parliament, not courts.

Rohin Bhatt, a gay lawyer who is one of the petitioners in this case, accuses the government of fomenting homophobia while seeking to undermine secular values protected under the Constitution. Bhatt claims their arguments represent an attempt by India's current leadership to move away from being governed constitutionally and towards being run by religion instead.

Though it is impossible to know exactly how the Supreme Court will rule on this matter, some lawyers remain hopeful that it will allow gay and lesbian couples to marry legally - although this process could take many years in a country with such a longstanding culture as India's. Just as it took over ten years for American courts to expand marriage rights after decriminalizing gay sex, so too may Indian wedding aisles take time before experiencing equal treatment under their law.