HUFOOAE3ZUI63E7AHBKR5CBDTQ.jpgw1440

How Same-Sex Marriage Could Become Legal in India

Leave a comment

India’s highest court will hear arguments on March 13 on the legalization of same-sex marriage, a landmark for the country of 1.4 billion people and for the global movement for LGBTQ rights. A decision allowing gay marriage under India’s constitution would run afoul of the socially conservative sentiment of Prime Minister Narendra Modi’s Hindu nationalist Bharatiya Janata Party, as well as wide swaths of the country’s Muslim community . But younger Indians tend to be more accepting.

1. What is the legal situation now?

In India, marriage is governed by different laws tailored to the country’s religious groups; All limit marriage to male-female couples. But legal rights for LGBTQ people in India have expanded over the past decade, led almost entirely by the Supreme Court.

• In 2014 it laid the groundwork by giving legal recognition to non-binary or transgender people as a “third gender”

• In 2017, it strengthened the right to privacy, and also recognized sexual orientation as an essential attribute of an individual’s privacy and dignity

• In 2018, it decriminalized homosexual sex—overturning a British colonial-era law—and expanded constitutional rights for LGBTQ people.

• Last year the court introduced protections for what it called “atypical” families. This is a broad category that includes, for example, single parents, blended families or consanguineous relationships – and same-sex couples. The court said that such non-traditional manifestations of families deserve equal benefits under various social welfare legislation.

2. Where does the government stand?

The ruling party, the BJP, has opposed the expansion of the Hindu Marriage Act to include same-sex marriages in 2020, arguing that such unions are out of step with Indian values ​​and culture. The Supreme Court has asked the government to officially weigh in on the current case; as of mid-January it had yet to do so. Sushil Modi, a BJP lawmaker, told Parliament in December that a question of such social importance should not be left to “a few judges.” He urged the government to argue strongly against legal sanctions for gay marriage. In January, the Supreme Court said the government was partly against a gay judge’s nomination because of his sexual orientation. The government did not immediately comment.

3. And what about religious leaders?

Leaders of India’s most prominent religious groups either do not support LGBTQ rights or avoid comment. But among the Hindu majority – about 80% of the country – there has been a gradual shift in how religious leaders engage with the community.

• In 2018, the Rashtriya Swayamsevak Sangh (RSS), a Hindu nationalist group, agreed with the Supreme Court ruling decriminalizing gay sex, but maintained that same-sex relationships are “neither natural nor desirable.” This year, the group’s head, Mohan Bhagwat, backed LGBTQ rights, saying such people “have always been there” and are “a part of society.” But he stopped short of advocating for same-sex marriage.

• The All India Muslim Personal Law Board (AIMPLB), a non-governmental body that works to protect and propagate Muslim personal laws, such as those dealing with family matters, opposes homosexuality and calls it immoral. (About 15% of Indians are Muslim.)

• Some groups from the much smaller Christian population argued against the legalization of homosexuality in 2018, saying that “same-sex marriage would become social experiments with unpredictable outcomes”.

4. Is it easy to be out for LGBTQ people in India?

It depends. Although they no longer risk facing criminal prosecution, there are no national anti-discrimination laws covering sexual orientation in employment or housing, although the constitution does include a general guarantee of equal rights to all. Younger people are more open and willing to talk about sexuality and sexual identity. Most big cities host LGBTQ Pride parades or other events and tend to be much more open than many rural places. Almost 60% of the urban population is comfortable with LGBTQ people being open about their sexual orientation or gender identity, according to the Ipsos 2021 LGBTQ+ Pride survey. More people (44%) said they support same-sex marriage than public displays of affection between LGBTQ people (39%), such as holding hands or kissing. But in rural parts of the country, where about two-thirds of the country’s population live, being gay can still be considered taboo. LGBTQ individuals still face communal discrimination, being shunned by the community and their family, and harassment or violence, sometimes even at the hands of the police. There is also the fear of being subjected to “corrective treatment”.

5. What is before the court?

The Supreme Court agreed to hear the petition of two same-sex couples in November. More couples have since joined, and the court has also absorbed similar cases from some states challenging different religious personal statutes. This means that the court will address whether gay marriage will be allowed under the Hindu Marriage Act, the Indian Christian Marriage Act, the Parsi Marriage and Divorce Act, and Muslim personal laws (which are largely uncodified) in addition to the secular code – Special Marriage Act – which governs unions between interfaith couples, non-believers and others. Some legal experts think the court may try to find a way to allow same-sex marriage under secular law without expanding the religious codes. The case is expected to be heard on March 13, with no timeline for a decision. The 2018 decriminalization decision was delivered two months after the hearings, but it was seen as surprisingly quick.

6. How does India compare with other countries?

By the end of 2022, same-sex marriage was legal in more than 30 countries, mostly in Western Europe and the Americas. In Asia, only one jurisdiction – Taiwan – allows it, and attitudes and laws elsewhere are divided. Hong Kong does not allow same-sex marriage at home, but will, for example, grant dependent visas to same-sex spouses of expatriate workers. Thailand is moving towards recognition of civil unions. Other places have become more restrictive: Indonesia, which does not recognize gay marriage, recently banned all extramarital sex; Singapore’s parliament passed a law lifting a ban on sex between men, but blocked a path to marriage equality. If India’s court sanctions same-sex marriage, the country will replace the US as the largest democracy with such rights for LGBTQ couples.

More stories like this are available on bloomberg.com

Related Posts