Explained: Ahead of SC hearing on same-sex marriages, where India stands

By Shruti Mahajan

The Supreme Court will hear arguments on whether to legalise same-sex marriage on March 13, a landmark for the country of 140 crore people and for the global movement for LGBTQ rights. A ruling that finds gay marriages are allowed under India’s constitution would run counter to the socially conservative sentiment of the ruling BJP, as well as wide swaths of the country’s Muslim community. But without any intervention from Parliament, the court’s decision will be the law of the land.

1. What’s the legal situation now?

In India, marriage is governed by different laws tailored to different religious groups; All limit marriage between heterosexual. But legal rights for LGBTQ people in India have been expanding 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 persons 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 instituted protections for what it called “atypical” families. It’s a broad category that includes, for example, single parents, blended families or kinship relationships — and same-sex couples. The court said that such non-traditional manifestations of families are equally deserving of benefits under various social welfare legislation.

2. Where does the government stand?

The BJP opposed broadening 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. BJP lawmaker Sushil Modi told Parliament in December that a question of such social significance shouldn’t be left to “a couple of judges.” He urged the government to strongly argue against legal sanction for gay marriages.

3. And what about religious leaders?

Leaders of India’s most prominent religious groups either don’t support LGBTQ rights or avoided commenting. But among the Hindu majority — roughly 80% of the country — there’s been a gradual shift in how religious leaders engage with the community.

In 2018, the Rashtriya Swayamsevak Sangh (RSS) agreed with the top 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 the society.” But he stopped short of advocating for same-sex marriages.

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 issues, opposes homosexuality, terming it immoral. (About 15% of Indians are Muslim.)

Some groups of the much smaller Christian population had argued against legalising homosexuality in 2018 and said that “same-sex marriages would become social experiments with unpredictable outcome.”

4. For LGBTQ people in India, is it easy to be out?

It depends. While they are no longer at the risk of facing criminal prosecution, there are no national anti-discrimination laws covering sexual orientation in employment or housing. LGBTQ persons can take recourse in the Constitution of India though that guarantees right to equality 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. Nearly 60% of the urban population is comfortable with LGBTQ persons being open about their sexual orientation or gender identity, according to the Ipsos 2021 LGBTQ+ Pride survey. More people (44%) said they supported same-sex marriage than public displays of affection between LGBTQ people (39%), such as holding hands or kissing. In rural parts of the country though, where roughly two-thirds of the country’s population lives, being gay can still be considered taboo. They still face societal discrimination, being shunned by the community and their family, and harassment or violence, sometimes even at the hands of the police. There’s also the fear of being subjected to “corrective treatment.”

5. What’s before the court?

The Supreme Court agreed to hear the petition of two same-sex couples in November. More couples have joined since, and the court has also absorbed similar cases from some states challenging different religious personal statutes. That means 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 will try to find a way to allow same-sex marriage under the secular laws, without expanding the religious codes. The case is scheduled to be heard on March 13, with no timeline for a decision. The 2018 decriminalization decision was handed down two months after the hearings, but that was seen as surprisingly quick.

6. How does India compare with other countries?

At 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 split. Hong Kong doesn’t allow same-sex marriage at home but will grant dependent visas to same-sex spouses of expatriate workers, for example. Thailand is inching toward recognition for civil unions. Other places have become more restrictive: Indonesia, which doesn’t recognize gay marriage, recently banned all extra-marital sex; Singapore’s parliament passed a law lifting a ban on sex between men but has blocked a path toward marriage equality. If India’s court sanctions same-sex marriage, the country would supplant the US as the biggest democracy with such rights for LGBTQ couples.