The Washington Post

Indian government opposes same-sex marriage in key Supreme Court case


NEW DELHI — The Indian government has presented its formal opposition to same-sex marriage in a key Supreme Court case, saying in an affidavit that such unions would cause “complete havoc” in the country.

It is the clearest statement to date by Prime Minister Narendra Modi’s administra­tion on an issue that’s been increasing­ly debated in Indian society, particular­ly after the top court issued a landmark ruling in 2018 that decriminal­ized gay sex.

In recent months, many Indian legal and political observers have closely watched how the Modi government would respond to more than a dozen petitions submitted by same-sex couples demanding marriage rights after influentia­l right-wing organizati­ons affiliated with Modi’s Bharatiya Janata Party (BJP) signaled an embrace — or at least a softening view — of LGBT rights.

In its affidavit submitted Monday, the government argued that the notion of marriage “necessaril­y and inevitably presuppose­s a union between two persons of the opposite sex” and hinted that same-sex marriage was a Western concept that would be incongruou­s with traditiona­l Indian values. The issue should be debated and legislated in Parliament, not in the courts, the government argued.

The union of a man and a woman “is socially, culturally and legally ingrained into the very idea [of marriage],” the government’s affidavit said. “In our country ... marriage necessaril­y depends upon age-old customs, rituals, practices, cultural ethos, and societal values. . . . Western decisions sans any basis in Indian constituti­onal law jurisprude­nce, cannot be imported in this context.”

“Any interferen­ce with the same would cause a complete havoc with the delicate balance of personal laws in the country and in accepted societal values,” it added.

The government’s opposition comes at a time when the debate around LGBTQ rights has moved swiftly into Indian courtrooms and living rooms. In 2018, the Supreme Court decriminal­ized consensual gay sex and overturned a colonial-era law after a decade-long court battle. Samesex relationsh­ips are also increasing­ly seen in Bollywood movies, and there are swelling pride parades in cities such as Mumbai, New Delhi and Bangalore.

And many politician­s and influentia­l organizati­ons on India’s political right, including the Rashtriya Swayamseva­k Sangh (RSS), the Hindu nationalis­t organizati­on that is the ideologica­l parent of the BJP, have increasing­ly offered mixed or even supportive messages on LGBTQ rights.

While RSS leaders have previously criticized gay relationsh­ips as unnatural and promoted by “ultra-westernize­d elites,” some have appeared to soften their stance over the past decade, with prominent officials calling for a review of the colonial-era law criminaliz­ing gay sex before it was overturned in 2018.

This year, the powerful head of the RSS, Mohan Bhagwat, said members of the LGBTQ community should have their “own private and social space.” In a January interview with an RSS-published magazine that sent ripples through India, Bhagwat said that even in Hindu scriptures, ancient Indian society addressed same-sex relationsh­ips “with a humane approach to provide them social acceptance.”

Once the government’s stance become public, however, a top RSS official declared Tuesday the group’s view that marriage could only be between two different genders.

While same-sex marriage has evoked strong opinions from some BJP lawmakers, such as Sushil Kumar Modi, who called its advocates “left-liberals” wanting to “imitate the West and impose such laws,” many members of Parliament from the party have actually been supportive of LGBTQ issues.

Anish Gawande, founder of Pink List India, which documents the views of Indian politician­s on LGBTQ rights, has found that 115 Parliament members have made statements, votes or submission­s in support of queer rights, out of 161 total vocal members, with a majority of elected members who support queer rights belonging to the BJP.

“The RSS and the BJP have been carefully deliberati­ng their stance on this issue,” he said. “Yet their approach to queerness largely remains one of sympatheti­c acceptance rather than inclusion.”

While the rhetoric is no longer one of “unnatural” acts, Gawande said, “there is a long way to go to ensure recognitio­n by the government. Today, you are free to live together, you are free to have sex. They will tolerate you, but you don’t have equal rights as a citizen.”

If the Supreme Court legalizes same-sex marriage, India would become the second country in Asia, after Taiwan, to do so. Legal analysts and lawyers say the high court is likely to rule in favor of the same-sex plaintiffs, based on the judges’ remarks so far. The hearings before a panel of five justices are expected to open on April 18.

In one widely reported exchange in the Supreme Court on Monday, the government’s lawyer, Solicitor General Tushar Mehta, argued that legalizing same-sex marriage could have a negative impact on Indian children raised by same-sex parents.

The chief justice, D.Y. Chandrachu­d, retorted: “But, Mr. Solicitor, the adopted child of a lesbian couple or a gay couple does not necessaril­y have to be lesbian or gay.”

 ?? Anushree Fadnavis/reuters ?? The Indian government on Monday presented a formal opinion opposed to same-sex marriage at the Supreme Court in New Delhi.
Anushree Fadnavis/reuters The Indian government on Monday presented a formal opinion opposed to same-sex marriage at the Supreme Court in New Delhi.

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