Explained: Why the upcoming Supreme Court ruling on same-sex marriage is critical for the LGBTQ community

In the first episode of “Love, Marriage”, a series for and about the lesbian, gay, bisexual transgender and queer community’s struggle for equality, we talk about the row over the right to marry a same-sex partner. Is same sex marriage legal in India?On September 6th 2018 a five-judge Bench unanimously struck down Section 377, decriminalising homosexuality. Since then, appeals kept pouring in from same-sex couples to courts across the country for their relationship to be recognised as a marriage too. As couples, they wanted to avail the rights that are laid out in our legal framework for marriages. Then the Supreme Court, last year, transferred all pending cases of same-sex marriage from the High Courts to itself and slated the hearings for April 18. It had also sought the Government’s response to appeals for same-sex marriage to be allowed under a special law. To this, the Government responded negatively. Therefore a sexual relationship between persons of the same sex is albeit is no longer criminal, the socio-legal institution of marriage in India so far does not recognise any relationship other than heterosexual ones.ALSO LISTEN: Why the Centre and Supreme Court are fighting over same-sex marriage Centre’s stance on same-sex marriageTwo days before the Supreme Court is set to hear the same sex marriage pleas, the Centre said: "the courts cannot either create or recognize any institution called “marriage” either by way of a judicial interpretation or striking down / reading down the existing legislative framework for the marriages", and furthered their argument by calling the plea for same-sex marriage rights "a mere urban elitist view for the purpose of social acceptance". On March 12 this year, the Centre had filed a 56-page long affidavit to explain how inappropriate it would be if homosexuals were allowed to marry and be granted the rights that straight married couples enjoy. They argued, “same-sex marriage is against the concept of the Indian family unit”. According to them, the only accepted view of the Indian family unit is of a biological man, a biological woman and children born out of their union. They feel if queer couples started getting legal recognition, there’d be complete havoc in Indian society.Indranil and Eken had a wedding ceremony in Kolkata earlier this year but are yet to be legally married for the lack of same-sex marriage laws in India. Supreme Court on same-sex marriageThe Courts have cited the Constitution in favour of granting citizens equal rights, including that of same-sex marriage. A five-judge Constitution bench of the SC comprising Chief Justice of India D Y Chandrachud and Justices S K Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha, is set to hear a set of petitions seeking legal recognition for same-sex marriages on April 18. Big fat gay wedding: How Indranil and Eken fought all odds to be openly queer in India Why marriage is an important right in IndiaIn India, one can only be related to someone by blood, as in parents and children, or by marriage, as in their spouse. Boyfriends, girlfriends, friends, lovers, exes… none of these relationships are properly defined or recognised by the law here. So a certain set of legal rights will simply not be available to you and your partner unless you’re married, irrespective of whether you’re gay or straight. In hospitals, in banks, and in matters of property, inheritance and taxes, the only people you can involve yourself with - as nominees, beneficiaries, co-signees, consent-givers etc - can only be your parents, your children or your spouse. It does not matter how much you love someone, unless you’re married or related by blood, in the eyes of the law and most institutions, you are no one to them. Therefore, marriage does not just mean a wedding. In our society, it is the only path to accessing your rights, privileges and protections as a sanctified and legitimate couple.Nick and Sayantika call each other their PILs ie. partner in life because they don't have the right to marry. Same-sex marriage under Special Marriage Act?The government didn’t just cite social reasons to justify their argument against same sex marriage. Apparently passing a law to allow same sex marriages would mean overhauling all existing marriage laws. But is that really the case? Queer activist and advocate Arvind Narrain is of the opinion that the Special Marriage Act has room for a law to recognise same sex marriages.Partners, not wives: What lesbians Nick and Sayantika feel about being denied the right to marry NCP MP Supriya Sule’s private member billNarrain is not the only one who feels this way. Someone from the legislature, an MP from Maharashtra, also feels similarly. On April 1st 2022, Nationalist Congress Party MP Supriya Sule introduced a private member’s bill in the Lok Sabha to legalise same-sex marriage, and provide the same legal rights to LGBTQIA+ couples that heterosexual married couples are entitled to. In her bill, Sule proposed the legalisation through an amendment to the Special Marriage Act 1954. Her bill also proposed to fix the age of marriage at 21 years if both partners are male and at 18 if both are female. She also proposed the usage of the word “spouse” in place of gendered terms like husband and wife.How many people does this issue affect?In 2021, as many as 27 countries participated in a global survey by IPSOS called the LGBT+ PRIDE 2021 GLOBAL SURVEY. India was one of them. In the report, you will find that as of 2021, 24% of adults in India were unable or unwilling to define their sexual orientation. 17% of Indians identified as not heterosexual, barring those who claimed they are unsure or preferred not to specify. So it’s safe to say that it’s not just a handful of people who are affected by legislative decisions like this. It’s a sizable part of our population who need to have the same rights that are accorded to the country’s heterosexual citizens, but don’t fully have them yet.Audio production: Anil Chauhan