STEPS TOWARDS CHANGE: LEGALIZING GAY MARRIAGES

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice and family.” — Supreme Court Justice Anthony Kennedy

In the last few decades, the growth of India has been extravagant in areas of business, and infrastructure yet remains crippled in recognition of the rights of members of the LGBTQIA+ community. The stigma attached to this community often paves the way for discrimination in more ways than one. People are afraid to come out and embrace their sexuality in our society.

The legal system has a significant role to play in tough situations like this, the judges and lawyers become the pioneer of change. One such watershed moment occurred in the year of 2018 when the Supreme Court, despite the majoritarian prejudice, struck down Section 377 of the Indian Penal Code and upheld the legality of the LGBTQIA+ community. Since independence, it has taken the Indian judicial system 70 years to abolish the law and decriminalize homosexuality. The activists who fought for the cause for more than a decade, battling with society and the courts to achieve equality in the eyes of the law, reacted with euphoria to the historic decision. It was a matter of great pride.

Even though marriage equality is still a way off in a time when it is acceptable to wed the person one loves regardless of that person's gender identity or sexual orientation, the Supreme Court's ruling foreshadows its eventuality. Encouraging marriage equality among gay couples would signal a positive turn towards upholding the laws governing human rights, which state that no person should have to endure oppression, fear, or discrimination. We can take the example of societies around us, like those of various European nations and even South Africa, which approve of Civil partnership system for gay people. A rise in same-sex unions would might increase adoptions, which would be a big step towards a more inclusive society.

However, the seeds of prejudice already present in our society won't disappear overnight. Our social structure and traditions differ greatly from those of Western societies. It may take decades or even centuries to change one's mindset. This is where the legal fraternity comes to play. On 30th January 2023, the Delhi High Court transferred to the Supreme Court more than a half-dozen petitions asking for the legalization of same-sex unions. After learning that the Supreme Court had requested a transfer of appeals on the matter filed before all High Courts to itself, a bench consisting of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad issued the order stating: "Since several batches of petitions are pending before Delhi, Kerala, and Gujarat High Courts involving the same question, we are of the view that they should be transferred and decided by this Court. We direct that all writ petitions shall stand transferred to this Court."

For many people who were unaware of the changes happening all over the world, the spread of awareness regarding the same gender marriage has been a lifesaver. Though there is still a long way to go, transformation must start somewhere, a recognition that all people are created equal and that their preferences and decisions regarding whom they should love and marry should not be dictated by the state. . As very rightly stated by the Greek philosopher Heraclitus that “Change is the only constant”; we should put faith in our legal system and hope that they make a genuine decision in favor of humanity as a whole. The earliest optimal solution is to pass new laws or amend existing ones.

In order to remove the assumption that marriages are heterosexual and to make them inclusive of all gender identities and sexual orientations, the Special Marriage Act of 1954, passed as India's first secular marriage law, must be amended. Currently, the Indian subcontinent and its 140 crores of population patiently awaits the decision of the Supreme Court on the matter of same sex which commenced on April 18th, 2023. A five-judge Constitution bench, consisting of Chief Justice D Y Chandrachud and Justices S K Kaul, S R Bhat, Hima Kohli, and P S Narasimha, has presided over the hearing of the case. Solicitor General Tushar Mehta represents the Centre, while Senior Advocate Mukul Rohatgi represents the petitioners.

The Centre submitted its preliminary objections to this Supreme Court hearing, claiming that the only legally acceptable forum for deciding whether to create a new social relationship is Parliament. In pursuance of the hearing, the apex court took an ‘incremental approach’. It made it clear that the scope of the proceedings would be limited to validating these marriages in accordance with the Special Marriage Act (SMA). With each passing day of the hearing, the hope is to see the Indian context finally accept same-sex marriages and end the centuries-long atrociousness.

~Snigdha Ghose