Equal marriage rights: A deep dive into the resistance, showcasing … – SabrangIndia

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"History owes an apology to LGBTQIA+ people and their families for the ignominy and ostracism they have faced"

Since April 18, all eyes have been on the Supreme Court of India as it hears a batch of petitions seeking legal recognition for same-sex marriage in India, or seeking equal marital rights.

A five-judge constitution bench of the Supreme Court comprising of Chief Justice of India DYChandrachud, and Justices SKKaul,RavindraBhat,HimaKohli, and PSNarasimha, is hearing the petitions had been hearing the said petitions since last week.

Online live hearings have so democratised a normally opaque process with unconfirmed reports suggesting that viewership on Netflix, the OTP platform has dipped as a result!

Same-sexand queercouples from around the country have approached the Supreme Court with a plea stating that same-sexand queermarriages should be legalised under the Special Marriage Act that currently allows for inter-religious marriages amongst others.Through this petitions, rights ancillary to marriage, such as family insurance, divorce, adoption, maintenance, succession are also being demanded by a number of petitioner.

The petitioners have made their arguments before the bench, and the union governments arguments are still being heard. It is worth noting thatthe two days before the bench was scheduled to hear the petitions, theCentre hadsubmitted a102-page documentopposing thepetitionsfiled by couples seeking equal marital rights, deeming itan "urban elitist concept far removed from the social ethos of the country." The Modi-led union government told the Supreme Court that the petitioners were advancing "mere urban elitist views for the purpose of social acceptance" by demanding equal marriage rights. According to this untested stance, neitheruncodifiedpersonal laws nor codified statutory laws recognise oraccept marriage between two individuals who are not biologically male and female. The union government hadalso stated that if the demands of the petitioners are heard and met, itwill wreak "complete havoc" on the delicate balance of personal laws and accepted societal values. Finally, the union government representated by none less than its blue eyed boy, Solicitor General, Tushar Mehta argued that the issue cannot be decided by a Court of Law and that it is up to the legislature to amend the law, if at all.

JamiatUlama-iHind, a representative of Muslims, has also filed theirobjections against the petitions, claiming that the pleas of the petitioners are an attack on the family system and violate all personal laws. "This concept of same-sex marriage goes to attack the family system rather than making a family through this process," it had said.Jamiatis being represented by Senior AdvocateKapilSibal, and is yet to be heard.

Even though this case is still being heard, the opposition views being expressed against the equal marriage rights petitionsare no longerlimited to the courtor the parties to the petitions, withmany groups voicing their opposition, making baseless claims in desperation, and asking the Supreme Court to simply, not hear the said petitions.

While the petitioners, queer community and LGBTQ+ activists have to hear the misinformed, downright derogatory arguments being made by the the union government, vociferously if ridiculously put by Solicitor GeneralTusharMehta, there is another lively debate being conducted outside of the court wheregovernmentagencies and mouth pieces, far-rightreligious leadersand groups of citizenry arestrongly opposingthe expansion of equal marital rights.

Opposition by the Bar Council of India

On April 23, a Sunday, the Bar Council of India (BCI) passed a resolution opposing legal recognition of same-sex and queermarriages, requesting that the Supreme Court refer the matter to Parliament because it would have far-reaching implications for socio-religious traditions.The BCIself-appointed themselvesto be the "mouthpiece of the common man," claiming that the legislature is "truly reflective of the will of the people" and that "more than 99.9% of the people in the country" oppose same-sexand queermarriage. The resolution further said that any decision by the Supreme Courtin favour of the petitioners in the case will be "treated as being against the country's culture and social religious structure."

Now, the BCI is a statutory bodywhosregulatory and representative mandate for the legal profession includes, among other things, establishing standards for professional conduct as well as protocol for advocates, protecting advocates' rights, privileges, and interests, and advocating for and promoting law reform. The council has so far not been pro-active in carrying out its function of promoting and supporting any sort or kind of legal reform by issuing this unnecessary and misinformed resolution with unsubstantiated claims. In doing so, the statutory body has not lived up toits mandate under the Advocates Act of 1961. More importantly, it questioned the Supreme Court's fundamental role in preserving constitutional principles in their true spirit and entirety. Furthermore, the BCI's lobbying of legislative primacy in the matter condemns its own queer members, some of whom are openlyqueer and have had to deal with homophobia indenial of being offered a judgeship, such as AdvocateSaurabhKripal, as well as the larger LGBTQIA+population, to suffer a deprivation of freedoms and rights as a consequence of legislative inaction.

The Council also departed fromits responsibility to promote law reform by opposing a judicial review of marriage laws, specifically the Special Marriage Act, which sought to recognise unions that did not conform to what different communities held to be "acceptable".The said resolution was criticised by many groups and individuals. Queer collectives from 36 Indian law schools, including National Law University Delhi, Faculty of Law, Delhi University and Gujarat National Law University,comprising of more than 600 students,condemned the BCI resolution as "ignorant, harmful, and antithetical to our Constitution and the spirit of inclusive social life," demonstrating the BCI's lack of understanding of its mandate. In a document titled "Representation against the bar council of Indias resolution on marriage equality", the students said they strongly condemn the BCIs "regressive andqueerphobicresolution on marriage equality. The statement also added: "It (BCI resolution) attempts to tell queer persons that the law and the legal profession have no place for them. We, the undersigned, are queer and allied student groups across Indian law schools."

A strong worded critique of the BCIs resolution was also expressed byTrinamoolCongress MPMahuaMoitrawho slammed theBCI for urging the Supreme Court not to hear the same-sex marriage caseand for its 99 percent Indians opposing it remark.Moitraaddressed the BCI in a series of tweets, saying you are oath-bound to protect constitutional morality, and not popular sentiment. Gentlemen - have you truly lost your minds? Even if 1 persons freedom is encroached on, SC is bound to hear it, the TMC MP said. She also brought forth the male-dominated culture of the BCI and wrote in another tweet, India worlds largest democracy with 49% women population. Bar Council of India however, is an all male body which hasnt held elections for the longest time. And BCI lecturing the Supreme Court on what 99% of Indians want Gentlemen, enough already. Zip it. She also said, Maybe if BCI held timely elections you wouldn't even be in your seats in your little boy's club with no women. Shame!

On April 28, the Supreme Court Bar Association (SCBA) also passed a resolution condemning the Bar Council of India's statements opposing same-sex and queermarriage legalisation, as well as the hearing and decision-making process taking place in the Supreme Court of India. In their resolution, the SCBA stated that it was "highly inappropriate of the Bar Council of India" to oppose the same sex case hearing because it is the Supreme Court's right to decide whether the matter should be adjudicated by court or left to parliament.

Opposition by other parties and agencies

It is essential to note that while theSupremeCourtis not bound to consider the resolutionof the BCI,its corrosive effects cannot beignored.The openly homophobic resolution passed by the BCIrolled the stone, and soon enough, more agencies and organisations came in support of the BCI and the government. A day after the issuance of the BCI resolution, the Delhi's District Court Bar Associations also expressed their displeasure on the day-to-day proceedings on a batch of petitions presently examined by the Constitution Bench of Supreme Court pertaining to 'marriage equality rights for LGBTQIA+community'.It said that the social ramifications of the proceedings before the Supreme Court are colossal and have the potential for an unintended impact on the social fabric.

In a rare show of unity, leaders from all of India's main religions (the male leadership that us!) - Hindu, Muslim, Jain, Sikh and Christian -also opposed same sex union, with several of them insisting that marriage "is for procreation, not recreation".

TheVishwaHinduParishad(VHP), a far-right extremist group, with a record for aggression and violence against minorities, even causing disharmony, also took it upon themselves to criticise the Supreme Court, said the "haste" with which the Supreme Court is disposing of the petitions for legal recognition of same-sex marriages is not appropriate. The Hindu-tva body, which has the support of the current government at the centre, said the apex court should have sought the opinion of religious leaders and experts from diverse fields before launching on this constitutional challenge!

End April 2023, to top it all,21 retired high court judgeswrote an open lettersaying allowing same-sex marriage would have a "devastating impact on children, family and society".They added that it could increase incidence of HIV-Aids in India and expressed concern that it could "negatively affect the psychological and emotional development of children raised by same-sex couples".

On April 27, more than 120 eminent citizens, including retired high court judges and former bureaucrats, wrote to PresidentDroupadiMurmuto express their opposition to what they called "highly objectionable attempts" to legalize same-sex and queer marriages. They claimed that same-sexbehavioralinstitutions are irrational and unnatural in Indian society and culture.

Former CAG RajivMehrishi, former home secretary L CGoyal, former foreign secretaryShashank, former RAW chiefSanjeevTripathi, Justice (retired) S NDhingra, and Justice (retired)LokPal Singh were among those who signed the letter.

They stated that it was critical toadvisethe Supreme Court of the precise estimate and outcome of such a "culturally disastrous" step in the name of a "ground-breaking approach." They claimed that discussion about human institutional relations such as marriage is "essentially a legislative function," and that courts should "refrain" from creating, recognising, or demolishing the institution of marriage through judicial interpretation or by striking down or reading down the existing legislative framework for marriages.They also stated in the said letter that it was "widely appreciated" that same-sex relationship "can't create long-term or stable institutions".

On April 26, the Union Law MinisterKirenRijijualso said that an important matter like the institution of marriage should be decided by people of the country and that courts are not the forum to settle such issues. Referring to the Constitution bench of the top court hearing the matter,Rijijusaid, "If five wise men decide something which is correct according to them -- I cannot make any kind of adverse comments against them -- But if people do not want it, you cannot impose thingson the people..."

The views of the law minister came asno surprise as he has been indulging in an aggressive power battle with the highest judiciary, having the backing of the BJP government, with the current CJI of India. But what isdisappointing isthat, with the exception of the CPI(M), all the political opposition parties are keeping a prudent silence on the issue of legalising same-sex and queermarriages.

While it is necessary to keep in mind the opposing views being put forth and language being used to when it comes to expanding basic right to a community which has existed as a part of India since time immemorial, it is also essential to focus on the ones showing the community support while they fight this fight.

The support shown for the petitioners in their fight for marriage equality and ancillary rights

The petitioners for marriage equality received a significant boost when the Indian Psychiatric Society (IPS), the country's leading mental health group representing over 7,000 psychiatrists, issued a statement in their support.

"Homosexuality is not a disease," the IPS stated, adding that discrimination against LGBTQ+ people could cause furthermental health issues in them."

The Delhi Commission for Protection of Child Rights (DCPCR) also supported the petition, stating that the federal and state governments should take steps to raise public awareness about the "normalcy" of same-sex family units. Multiple studies on same-sex parenting have shown that same-sex couples can be good parents, according to their report. The statement of the IPS carries a certain amount of weight because the Supreme Court referred to a similar statement supporting gay sex decriminalization in its decision in 2018.

On April 25, a group of over 400 parents from Sweekar-The Rainbow Parents wrote to Chief Justice of India (CJI) D YChandrachudurging that their LGBTQIA++ wards be granted the right to marriage equality. Sweekar-The Rainbow Parents is a group formed by the parents of Indian LGBTQIA++ wards with the aim of supporting each other to accept ones child fully and be happy as a family.

We are appealing to you to consider marriage equality, the letter said. The letter also said that We desire to see our children and children-in-law find final legal acceptance for their relationship under the Special Marriage Act in our country. We are certain that a nation as big as ours which respects its diversity and stands for the value of exclusion, will open its legal gate of marriage equality to our children too. We are growing old. Some of us will touch 80 soon, we hope that we will get to see the legal stamp on the rainbow marriage of our children in our lifetime.

The full letter of support can beread here:

Conclusion

A human rights issue has become a central debate in our country now, where one set of persons are demanding legal recognition and support as a marginalised community. This community is demanding equal and basic rights from the court, while the other side is demanding for their continued oppression and suppression in the name of culture and marital sanctity. The Indian Constitutiongives all citizens the right to marry a person of their choice and prohibits discrimination on the basis of sexual orientation and their petition should be allowed since "constitutional morality is above social morality.

And yet, the queer community has had to approach the highest court of law and hear people oppose their demands stridently. They are making an impassioned please for simply, equal rights.

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Equal marriage rights: A deep dive into the resistance, showcasing ... - SabrangIndia