by In recent months, many Indian legal and political observers have been watching closely how the Modi government would respond to more than a dozen petitions filed by same-sex couples calling for marriage rights, after influential right-wing organizations aligned with Modi’s Bharatiya Janata Party (BJP) had signaled an embrace – or at least a softening view – of LGBT rights.
In its affidavit filed on Monday, the government argued that the concept of marriage “necessarily and inevitably implies a union between two persons of the opposite sex,” implying that same-sex marriage is a Western concept at odds with traditional Indian values be compatible. The issue should be debated and legislated in parliament, not in court, the government argued.
The union of man and woman “is socially, culturally and legally ingrained in the idea [of marriage]’ the government’s affidavit said. “In our country…marriage necessarily depends on ancient customs, rituals, practices, cultural ethos and societal values…Western decisions without any basis in Indian constitutional jurisprudence cannot be imported in this context.”
“Any interference in the same would cause utter chaos with the delicate balance of personal laws in the country and accepted societal values,” it added.
The government’s opposition comes at a time when the debate over LGBTQ rights has quickly entered Indian courtrooms and living rooms. 2018 the Supreme Court decriminalized consensual gay sex and repealed a colonial-era law after decades of court battles. Same-sex relationships are also increasingly being seen in Bollywood films, and there are burgeoning Pride parades in cities like Mumbai, New Delhi and Bangalore.
And many politicians and influential organizations on India’s political right, including Rashtriya Swayamsevak Sangh (RSS), the Hindu nationalist organization that is the ideological progenitor of the BJP, have issued increasingly mixed or even supportive messages on LGBTQ rights.
While RSS leaders have previously criticized homosexual relationships as unnatural and promoted by “ultra-Westernized elites,” some appear to have softened their stance over the past decade, with prominent officials calling for a review of the colonial-era law that criminalized homosexual sex before it was repealed in 2018 .
This year, the RSS’ powerful head, Mohan Bhagwat, said members of the LGBTQ community should have their “own private and social space.” In a January interview with a magazine published by RSS, which was sending waves across India, Bhagwat said that ancient Indian society, even in Hindu scriptures, “addressed same-sex relationships with a humane approach to make them socially acceptable.”
However, after the government’s stance became public, a senior RSS official on Tuesday explained the group’s view that marriage could only be between two different sexes.
While same-sex marriage has drawn strong opinions from some BJP lawmakers, such as Sushil Kumar Modi, who has described its advocates as “libertarians” who “want to emulate the West and enforce such laws,” many MPs from the party have actually supported LGBTQ -Subjects.
Anish Gawande, founder of Pink List India, which documents Indian politicians’ views on LGBTQ rights, has found that 115 members of parliament made statements, votes or petitions in support of queer rights, out of a total of 161 vocal members, with a majority of elected members who support queer rights associated with the BJP.
“The RSS and the BJP have carefully considered their stance on this issue,” he said. “Yet their approach to queerness remains one of sympathetic acceptance rather than inclusion.”
While rhetoric is no longer an “unnatural” act, Gawande said, “there is still a long way to go to ensure government recognition. Today you are free to live together, you are free to have sex. They will tolerate you, but you are not equal as a citizen.”
Should the Supreme Court legalize same-sex marriage, India would become the second country in Asia to do so, after Taiwan. Legal analysts and attorneys say the Supreme Court is likely to rule in favor of the same-sex plaintiffs based on the judges’ comments so far. Hearings before a panel of five judges are expected to open on April 18.
In a widely publicized exchange before the Supreme Court on Monday, government attorney Attorney General Tushar Mehta argued that legalizing same-sex marriage could have an impact on Indian children raised by same-sex parents.
The Chief Justice, DY Chandrachud, countered, “But, Mr. Solicitor, the adopted child of a lesbian or gay couple is not necessarily lesbian or gay.”
