Same sex marriages are ‘matter of seminal importance’, says India’s Supreme Court

In 2018 the Supreme Court decriminalised gay sex in the country but did not legalise same-sex unions

India’s Supreme Court has said that the question of legalising same-sex marriages in the country is of “seminal importance” while transferring the matter to a larger constitutional bench.

On Monday, a bench comprising chief justice DY Chandrachud, justice PS Narasimha, and justice JB Pardiwala made the observations while hearing a batch of petitions seeking legal recognition for same-sex marriages in the country.

“It is a matter of seminal importance,” Mr Chandrachud said.

In 2018 India’s top court delivered a landmark ruling decriminalising gay sex in the country. Prior to that under section 377 of the Indian Penal Code gay sex was against the law and punishable by up to 10 years in prison.

However, the 2018 judgment had not legalised same-sex unions.

At least 15 pleas have been filed in the court, setting the stage for a legal battle with prime minister Narendra Modi’s government.

On Monday, India’s solicitor general Tushar Mehta said that with the decriminalisation of section 377, same-sex couples are not facing any “stigma”.

Earlier on Sunday, in an affidavit filed in the federal government said same-sex marriages are “not comparable” to traditional marriages.

The filing invoked the “accepted view” that marriage took place only between a man and a woman in India and is a “holy union, a sacrament” and has “sanskar [values],” the filing said.

Mr Mehta said to the court on Monday that same-sex unions would give rise to other issues such as adoption of children, which needed to be dealt with by Parliament.

“Parliament will have to see psychology of a child who has not been reared by a father and a mother – these are the issues. The parliament will have to debate and take a call on whether in view of our ethos, this can be done,” he was quoted as saying by legal news portal Live Law.

However chief justice Chandrachud interrupted him and said: “Mr SG, the adopted child of a lesbian or a gay couple need not necessarily be lesbian or gay.”

The petitions before the court challenge the provisions of the Hindu Marriage Act, Foreign Marriage Act and Special Marriage Act under which marriages are legalised in India.

The petitioners have argued that the marriage legislations do not recognise same-sex marriages at present.

Senior advocate KV Vishwanathan, who was representing one of the petitioners, said that the issue is not of mere interpretation but of recognition of rights flowing from the constitution.

“This case is not about a transgender statute or the Hindu Marriage Act. What it is about is Article 21 and Article 19(1)(a). The right of choosing a partner is the right of expression, right of dignity. It’s only a natural right, an assertion of a right. It has implications.”

Lawyer and parliamentarian Abhishek Manu Singhvi also provided a roadmap for the petitioner’s arguments and said: “One is philosophical proposition – right to love makes us human. It should be extended in equal terms. You can extend it only on equal terms only if your lordships reads down the Special Marriage Act and other acts.

“It has to be read in such a way that terms such as man, woman are done away with.”

The court subsequently passed an order transferring the matter to a five-judge constitutional bench which will decide whether same-sex couples can marry legally.

The matter will come up for hearing on 18 April.

In 2019, Taiwan became the first Asian country to legalise gay marriage.

Several other Asian countries have been gradually moving towards the acceptance of same-sex unions.

Singapore, and Thailand have also moved to recognise same-sex unions.

Japan is the only G7 country that does not legally recognise same-sex unions in any form.