Tomorrow all eyes on India
One of the most significant court cases for LGBTQ+ people globally
The Indian same-sex marriage hearing: why I give the case a 70% chance of favorable outcome after my recent trip
Tomorrow, the Indian Supreme Court will start hearing arguments on several marriage equality cases combined (see article on the BBC). The hearings will last several weeks and be broadcasted live on YouTube. A decision by the Court might happen as early as this summer. This unexpected and revolutionary development has been under-covered by international, national, and local media.
I traveled to Mumbai last week to better understand what is at stake and the chances for a favorable decision.
Why you should care
This is one of the most significant global human rights development in recent years for several reasons:
- The largest LGBTQ+ population in the world. The 1,4 billion people Indians potentially include 100 million with same-sex attraction and a few dozen million more with non-conforming gender identity. A favorable decision would improve the lives of a fifth of LGBTQ+ people globally. It would build on the 2018 decriminalization but also the 2014 Nalsa judgment of the Indian Supreme Court, which gave the right to self-identify as male, female, or third gender, including on bank accounts and passports which was quickly followed by the Transgender Persons Protection of Rights Act of 2019.
- LGBTQ+ inclusion is an Asian issue. The rapid progress in LGBTQ+ inclusion in India, including decriminalization in 2018, has forever dispelled the prevalent notion that homosexuality is a Western issue, i.e., something is wrong with the US and European water systems. A favorable decision on same-sex marriage would reverberate across Asia and beyond. Until now, Taiwan was the only country in the region to have approved same-sex marriage.
- Discrimination against LGBTQ+ people is a colonial legacy. The LGBTQ+ community has a long recorded history in Ancient India due to the prevalence of accepting religions and cultures. Colonialism introduced homophobic and transphobic laws criminalizing homosexuality and non-conforming gender identities imposing Western attitudes and a Victorian approach to morality. Recognizing the rights and dignity of LGBTQ+ people would be a very Indian thing to do.
- Global social change is possible. Since I first visited India in 2012, an unexpected shift has happened in the country, social acceptance of homosexuality has grown by about 20 points, and a vibrant LGBTQ+ civil society is bringing change. This is a message of hope for LGBTQ+ people everywhere who continue to lead short, brutish lives without dignity or economic opportunities. Grassroots activism changes lives for LGBTQ+ people.
Challenging the Special Marriage Act
The case itself is complex. For starters, there are four marriage laws in India; Hindu Marriage Law, Christian Marriage Law, Muslim Marriage Law, and Special Marriage Law. While other petitions challenge the first three laws, the Supreme Court will only hear arguments related to the Special Marriage Law. The Special Marriage Act 1954 is an Act of the Parliament of India with provision for civil marriage for the people of India and all Indian nationals in foreign countries, irrelevant of the religion or faith followed by either party.
The plaintiffs believe the Special Marriage Act ultra-vires the Constitution and its chapter on fundamental rights, including the right to equal treatment and freedom of expression, which has also been legally held in India to include the right to privacy. The Special Marriage Act discriminates between same-sex and opposite-sex couples, denying same-sex couples legal rights and the social recognition and status that flows from marriage.
A distracted political context
If you live in the United States, you know that Supreme Courts are not immune to their political environment. While Prime Minister Modi has not explicitly spoken on the topic, his Government has sent some signals opposing same-sex marriage and said that judicial interference would cause “complete havoc with the delicate balance of personal laws.” Remember that in 2018, the government had not opposed decriminalization.
“The institution of marriage has a sanctity attached to it, and in major parts of the country, it is regarded as a sacrament, a holy union, and a sanskar*. In our country, despite statutory recognition of the relationship of marriage between a biological man and a biological woman, marriage necessarily depends upon age-old customs, rituals, practices, cultural ethos, and societal values.”
* Sanskar means refinement to achieve purity/perfection.
This argument is a bit hollow and almost appears hastily written. It also conveniently ignores pre-colonial Indian culture, which celebrated gender identity and expression and is closely rooted in family and family values, and what is more familial than marriage? what the petitioners are asking for.
Earlier this week, the Centre (The Government of India is known as the Central Government but often simply as the Centre,) dubbed the petition “an urban elitist contest far removed from the social ethos of the country,”… which was such an elitist comment to make (see here). Believing same-sex attraction is only for the rich is similar to claiming that happiness or sex is unimportant to the poor.
The social context
Contrary to what you could think, Indians do not have extreme opinions opposing the equality and dignity of LGBTQ+ people. While it remains a conservative society, and only 37% of Indians declared supporting homosexuality in a 2020 Pew Research Survey, this figure does not reflect the low intensity of opinions on the topic in the country.
In May 2012, I traveled to India, Delhi, Chennai, and Lucknow, tasked by the World Bank South Asia region to make a "preliminary assessment of the socio-economic situation of sexual minorities in South Asia." India was a good start. At the time, a 2009 order of the Deli High Court had struck parts of #sec377- in what became known as the “Naz decision”. We had tea in the modest living room of Justice Shah, who told us about the reaction to the Court's decision. He was amazed by how the decision was received:
“I thought it would not be acceptable to the Indian community,” he said when I met him “I was surprised at the positive reaction”.
My country, France, as an example, saw wide-scale “protest for all” (Manif pour Tous) demonstrations in 2012/2013, opposing gay marriage: this is not in the cards in India. The same-sex marriage hearings have had little coverage in the country. Bollywood and businesses have ignored it, so far, to be frank, which is a disadvantage but also reflects that same-sex marriage might be less of an uphill battle than decriminalization.
What are the chances for a favorable decision?
The bottom line is: can the Supreme Court both be visionary and take the risk of contradicting the government? The Supreme Court should strive to harmonize Indian law with the developing universal law of human rights. That universal law has been moving toward protecting LGBTQ+ people from discrimination. The Court has previously shown that it can be surprising and has sent several signals that it is taking this case seriously.
The jurisprudence (look at me using a fancy legal term!) on the right to privacy and decriminalization is a robust legal backdrop. Yet, the Court is not operating in a vacuum, and the Modi government has expressed mild concern that same-sex marriage is an overreach.
So are we about to be surprised
I was less optimistic before my trip. After the discussions I had last week, I now give it a 70% chance. A positive surprise is not impossible, and, in any case, the hearings in themselves are a global revolution. As my dear friend Salil Tripathi tweeted on the eve of decriminalization:
"May there be rainbows across India tomorrow - from Kachchh to Kamrup, from Kashmir to Kanyakumari.... may India be ribboned by rainbows tomorrow."
As some parts of the United States are ramping up a new narrative around wokeism, which is anti-LGBTQ+, India stands on the cup of being a global leader on LGBTQ+ rights, impacting the lives of hundreds of millions, with potential reverberation globally.
Great news. Very hopeful!