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Centre Must Change Its Stand And Allow Same-Sex Marriages

By Sunil Garodia
First publised on 2023-04-19 09:58:51

About the Author

Sunil Garodia Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack

In the current legal battle over same-sex marriage in India, the Centre is advancing three arguments: first, that courts lack the jurisdiction to decide on the matter and that it should be left to Parliament to debate the issue; second, that since states have rule-making power over the social and legal institution of marriage, all states should be heard on the matter (in fact, on Wednesday the Centre submitted an application before the court saying it had started consultations with the states on the issue); and third, that making marriages gender-neutral will impact many other laws that are not gender-neutral.

But the Supreme Court has taken a different approach. It has said that it will steer clear of personal and religious laws and examine whether the terms 'man' and 'woman' can be changed to 'person' in the Special Marriage Act to allow same-sex marriages. In an exchange between CJI D Y Chandrachud and solicitor general (SG) Tushar Mehta, Justice Chandrachud also raised questions about treating gender based only on the genitals a person was born with. He said that there is no absolute concept of a man or woman and the matter was far more complex than categorizing a person according to the born-with genitals. SG Tushar Mehta was of the opinion that if such a fluid concept was applied to categorize gender, it will render many existing laws unworkable.

While there might be a strong case for the government to believe that such matters should be left for Parliament to debate and decide, it is also true that, as the CJI said in a different context, "windows will willy nilly open. Society is not dependent on anything". The government needs to acknowledge that if it insists that the socio-legal institution of marriage, as defined by statutory or personal and religious laws, is only permissible for people of the opposite sex and forms the basis of starting a family, it is effectively closing many doors for the LGBQT community. In Indian society, families are conditioned to marry their children even if they are gay, and if a gay person is married to a heterosexual person, both of their lives will be ruined. The government should reconsider its position and allow for same-sex marriages to be legalized.

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