Supriya Chakraborty proposed to Abhay Dange in April 2021 during the middle of the COVID-19 pandemic in India. Chakraborty had been recovering from a high fever after testing positive for the virus, and having his partner of nearly 10 years by his side made one thing abundantly clear: “Abhay was the one,” he tells TIME. So Chakraborty, 32, and Dange, 35, made an important and potentially risky life decision to wed in a big Indian ceremony outside Hyderabad in December 2021.
The two men are now the lead petitioners in a landmark case that will decide the fate of same-sex marriage in India. In April, the Indian Supreme Court began hearing a series of petitions from 18 LGBTQ+ couples, including three who are raising children together, asking for the legal recognition of same-sex marriage. Oral arguments conclude Thursday, with a verdict expected in the coming months.
“We filed the petition because this issue impacts our lives in a very tangible manner,” Dange says. “We are the most important persons in each other’s lives and yet, we can’t call each other ‘husband’ legally, loudly, and proudly in this country.”
India has made significant strides in advancing LGBTQ+ rights in recent years, with the Supreme Court decriminalizing homosexuality in a landmark ruling in 2018. But homosexuality and same-sex marriage still remain taboo topics in the socially conservative country led by Prime Minister Narendra Modi, whose government has largely opposed the issue—arguing that the matter should be decided in parliament.
The five-judge Supreme Court, headed by Chief Justice DY Chandrachud, will now debate the issue of same-sex marriage, in what he said is a matter of “seminal importance” to India. If the court rules in favor of the petitioners, India will become the first country in South Asia, and the second country in Asia after Taiwan, to legalize same-sex marriage.
What do the pro-same-sex marriage petitions argue?
The petitioners are primarily focused on whether the Special Marriage Act of 1954, which amended India’s constitution to allow civil marriages between couples from different castes and religions, can be extended to include LGBTQ+ individuals.
The hearings for the petitions, which were directed to the Supreme Court on March 13 and began on April 14, argue for the legal recognition of same-sex marriage and their right to adopt as a matter of equality.
“When you deny me the right of marriage, you deny me citizenship. If you deny me citizenship, you are saying, ‘you’re no good, you’re not equal to a citizen under preamble so you stay where you are’,” Mukul Rohatgi, Chakraborty and Dange’s lawyer, argued in court on Tuesday. He added that the issue was about fundamental rights and should not be left in the hands of parliament.
Menaka Guruswamy and Arundhati Katju, LGBTQ+ lawyers also representing the petitioners, have echoed a similar argument. “With the Constitution in our hearts, we go back to our court, for complete equality, full dignity, and freedom worthy of our citizenship,” Guruswamy tweeted on Wednesday.
What are India’s current laws on LGBTQ+ issues?
India’s penal code, introduced under British rule in 1862, criminalized all homosexual acts by deeming them “against the order of nature.” That remained the case until the colonial-era law was struck down in 2018 by the Supreme Court.
As a result of the landmark 2018 ruling, acceptance of homosexuality has grown in India. A 2021 Ipsos survey found that 58% of Indians believe that same-sex couples should be allowed some sort of legal recognition, and 66% believe that same-sex couples should be able to adopt children. Another Pew survey in 2020 found that 37% of people believed that same-sex marriage should be accepted in the country, up from 15% in 2014.
But the Indian government, led by Modi’s Bharatiya Janata Party, has formally opposed the issue of same-sex marriage, even as many lawmakers take a different view. According to Pink List India, the country’s first archive of politicians supporting LGBTQ+ rights, 115 of 161 Members of Parliament who have publicly weighed in on the same-sex marriage debate have expressed support, with most of them belonging to the ruling BJP.
Nevertheless, the Indian government preemptively urged the Supreme Court to reject all pleas challenging the current legal framework, saying that there was a “legitimate state interest” in limiting the legal recognition “to marriage/union/relation as being heterosexual in nature,” according to the legal filing seen by Reuters.
“Living together as partners and having a sexual relationship by same-sex individuals… is not comparable with the Indian family unit concept of a husband, a wife, and children,” the ministry argued.
On Sunday, Reuters reported that the government submitted another 102-page document in court, arguing that the petitions “merely reflect urban elitist views” and that recognition of same-sex marriage would mean a “virtual judicial rewriting of an entire branch of law.”
What happens next?
“It’s hard to say exactly when [the court will make a ruling] because the final verdict will be a written verdict, which can take time,” says Kanav Sahgal from the Vidhi Center for Legal Policy, an independent legal think-tank in India. “And similar to the U.S., we might see judges wanting to write separate or concurring opinions.”
Sahgal adds that if the Supreme Court legalizes same-sex marriage, LGBTQ+ individuals could continue to face discrimination in public services, renting, or adoption. “India doesn’t have a national anti-discrimination law that protects sexual orientation,” he says. Sahgal also warned that some Indian states may refuse to give marriage licenses to couples who want to marry.
If the court rules in the petitioners’ favor, Chakraborty and Dange still plan to continue their fight for equal rights, including changing laws around workplace discrimination and adoption. “Even if you lose one battle, the fight doesn’t stop there,” Dange says.
But winning their case in the Supreme Court—which could be a historic step for India’s LGBTQ+ community—would “definitely call for a grand celebration,” Chakraborty says.
“Maybe we’ll even get married again—this time, with legal documents,” he adds.
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