The Indian Supreme Court has been hearing final arguments since Tuesday morning on a number of petitions seeking to legalise same-sex marriage. The hearings are being “livestreamed in public interest.” The final hearing will come up on Thursday.
With same sex couples and LGBTQIA+ activists hoping for a judgement in their favour and the government and religious leaders strongly opposing same sex union, the debate is turning out to be a strongly contested one.
Both sides have been forcefully putting forth their views. Lawyers for the petitioners have said that marriage is a union of two people – not just a man and woman. They have argued that laws should be changed to reflect that concepts of marriage have changed over time and that same sex couples also desire the respectability of marriage.
But Solicitor General Tushar Mehta, who’s representing the government, has questioned the court’s right to hear the matter at all. He says it’s not an issue to be decided by five individuals – the judges – and only the parliament can discuss the socio-legal issue of marriage.
The court has told both sides to finish arguments by Thursday.
A total of 18 couples have petitioned the Supreme Court to allow same sex marriage in India. At least three of the petitions have been filed by couples who are already raising children together.
Chief Justice DY Chandrachud called it a matter of “seminal importance” and set up a five-judge constitutional bench – which deals with important questions of law – to rule on it.
The debate is important in a country which is home to an estimated tens of millions of LGBTQIA+ people. In 2012, the Indian government put their population at 2.5 million, but calculations using global estimates believe it to be at least 10% of the entire population – or more than 135 million.
In a country sharply polarised over religion, tradition and castes, attitudes to sex and sexuality remain largely conservative and activists say most LGBTQ+ people are afraid to come out, even to their friends and family. Attacks on same sex couples routinely make headlines.
So, a lot of attention is focussed on what happens in the top court in the coming days – a favourable decision will make India the 35th country in the world to legalise same sex union and set off momentous changes in society. A lot of other laws, such as those governing adoption, divorce and inheritance, will also have to be rejigged.
In a rare show of unity, leaders from all of India’s main religions – Hindu, Muslim, Jain, Sikh and Christian – also opposed same sex union, with several of them insisting that marriage “is for procreation, not recreation”.
And last month, 21 retired high court judges also weighed in on the subject. Legalisation of same-sex marriage would have a “devastating impact on children, family and society”, they wrote in an open letter.
The judges added that allowing same-sex marriage could increase incidence of HIV-Aids in India and expressed concern that it could “negatively affect the psychological and emotional development of children raised by same-sex couples”.
Last weekend, the petitioners received a major boost when Indian Psychiatric Society (IPS) – the country’s leading mental health group which represents more than 7,000 psychiatrists – issued a statement in their support.
“Homosexuality is not a disease,” the IPS said in a statement, adding that discrimination against LGBTQ+ people could “lead to mental health issues in them”.
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