India’s refusal to legally recognize same-sex marriage and what it means

By Scarlett Clarke

India’s Supreme Court has declined to legally recognise same-sex marriage. The decision divided judges but ultimately it was decided it was beyond the purview of the judiciary and instead should be the decision of the government. Speaking to The Guardian, Robin Bhatt, a lawyer on the case, labelled the legislature ‘unsympathetic’ and the executive ‘apathetic’. Therefore, this highlights how the decision comes as a blow to the gay community in India. With same-sex relationships only legalised in India back in 2018, critics of the Supreme Court’s decision see it as symptomatic of the country’s conservatism surrounding LGBTQ+ issues. This comes as India’s government argued that same-sex marriage would lead to ‘chaos’ in society.

It should be noted that the Supreme Court decision did not come from a necessarily anti-gay marriage sentiment but from a feeling that it is the responsibility of the government. This is because taking that action threatens their judicial nature and could lead to them ‘legislating from the bench’. For the judiciary to effectively hold the government to account it is important for them to remain separate, independent, and as depoliticised as possible. However, in real terms the Supreme Court has rejected the constitutional right of LGBTQ+ people in India to marry. Surely if same-sex relations are now considered a constitutional right, same-sex marriage should follow suit? Thus, one point of tension in this story is how the court’s powers should be used and where they should be limited.

I do wonder if in the judiciary’s stance on avoiding judicial activism, they have merely partaken in a ‘conservative’ judicial activism. To stay ‘neutral’ in this matter is in fact taking a side due to the material impact of their decision on India’s gay community, especially given the conservative nature of India’s government being common knowledge. Whether intentional or not, their decision supports a conservative political philosophy.

A second tension here is whether we should be considering gay marriage a ‘political’ issue at all. I argue that rather than a political issue, gay marriage should be a constitutional right. For an issue to be political it implies that debate can be held, that government representatives can survey the public and make decisions to follow the national will. However, I don’t think this is something that should be up for debate. Political issues allow for interference, tyranny of the majority and therefore does not best protect marginalised groups, in this case, India’s gay community.

So long as gay marriage is treated as a ‘political’ issue, even should the legislature eventually legalise it, the right will still not be entirely protected but instead subject to the whims of the government of the day. If a freedom or a right can be taken away as easily as it was given, then was it really a right or freedom to begin with? The same can be said of the UK’s Human Rights Act and its fragility, highlighted by debates over trans rights. This issue also evokes the memory of Proposition 8 in Californina back in 2008. The proposition, which sought to ban same-sex marriage, was passed after being voted on by the public- although it was eventually ruled unconstitutional in the courts. What this highlights, however, is that so long as the rights of marginalised communities are treated as ‘political’ rather than ‘legal’, then these communities are not safe. They are subject to the whims of others, and so even if rights are eventually granted, they are not as entrenched. Thus, they are not protected.

When the marriage rights of heterosexual couples are legally protected, it should not be divisive for homosexual couples to want the same. Equality in this sense should be uncontroversial. I do not believe judicial neutrality is a good enough excuse because what I see is not neutrality, it is a failure to enshrine and protect rights.

Image credit: Silar via Wikimedia Commons