In recent months, many Indian legal and political observers have been closely following how the Modi government would respond to more than a dozen petitions filed by same-sex couples demanding marriage rights after influential right-wing organizations affiliated with Modi’s Bharatiya Janata Party ( BJP) signals an embrace – or at least a softening view – of LGBT rights.
In its affidavit filed Monday, the government argued that the concept of marriage “necessarily and inevitably presupposes a union between two persons of the opposite sex” and hinted that same-sex marriage is a Western concept that would conflict with traditional Indian values. The issue should be discussed and legislated in parliament, not the courts, the government argued.
The union of a man and a woman “is socially, culturally and legally embedded in the whole idea [of marriage]”said the government affidavit. “In our country…marriage necessarily depends on age-old customs, rituals, customs, cultural ethos and societal values…Western decisions without any basis in the jurisprudence of Indian constitutional law cannot be imported in this context.”
“Any interference with that would wreak complete havoc on the delicate balance between personal laws in the country and accepted societal values,” it added.
The government’s backlash comes at a time when the debate over LGBTQ rights has rapidly moved into Indian courtrooms and living rooms. In 2018, the Supreme Court consensual gay sex decriminalized and a colonial-era law overturned after a decade-long court case. Same-sex relationships are also becoming more common in Bollywood films, and there are swelling pride parades in cities such as Mumbai, New Delhi and Bangalore.
And many politicians and influential organizations of the political right in India, including the Rashtriya Swayamsevak Sangh (RSS), the Hindu nationalist organization that is the ideological parent of the BJP, have issued increasingly mixed or even supportive messages on LGBTQ rights.
While RSS leaders have previously criticized gay relationships as unnatural and promoted by “ultra-Western elites,” some appear to have softened their stance over the past decade, with prominent officials calling for a revision of the colonial-era law criminalizing gay sex before it becomes implemented. was destroyed 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 caused a stir in India, Bhagwat said that even in Hindu scriptures, ancient Indian society treated same-sex relationships “with a humane approach to provide them with social acceptance”.
While same-sex marriage has sparked strong opinions from some BJP lawmakers, such as Sushil Kumar Modi, who called his proponents “left-liberals” who want to “imitate the West and impose such laws,” many of the party’s MPs have actually raised LGBTI issues supported.
Anish Gawande, founder of Pink List India, which documents Indian politicians’ positions on LGBTQ rights, has found that 115 MPs have made statements, votes or comments in support of queer rights, out of a total of 161 vocal members, with a majority of elected members who support queer rights belonging to the BJP.
“The RSS and BJP have carefully considered their position on this issue,” he said. “Yet their approach to queerness remains largely one of sympathetic acceptance rather than inclusion.”
While the rhetoric is no longer one of “unnatural” acts, Gawande said, “there is still a long way to go to ensure government recognition. Today you are free to live together, you are free to have sex They will tolerate you, but you will not have equal rights as a citizen.”
If the Supreme Court legalizes same-sex marriage, India would become the second country in Asia to do so after Taiwan. Legal analysts and lawyers say the Supreme Court is likely to rule in favor of same-sex plaintiffs based on the judges’ comments so far. Hearings before a five-judge panel are expected to begin on April 18.
In a highly publicized discussion in the Supreme Court on Monday, the government’s attorney general, Advocate General Tushar Mehta, argued that legalizing same-sex marriage could affect Indian children being raised by same-sex parents.
The Chief Justice, D.Y. Chandrachud, responded, “But, Mr. Advocate, the adopted child of a lesbian or gay couple need not necessarily be a lesbian or gay.”