Supreme Court vs Centre: What the battle over same-sex marriage law means for the LGBTQ community

The Centre told the Supreme Court on March 12 that same-sex marriage does not align with the concept of an “Indian family unit.”It said, the Indian family unit consists of a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two. Same sex relationships have the right to exist, the Centre said, but legal validation of same-sex marital unions will wreak “complete havoc”.This came as a rebuttal to the petitions of more than a dozen same-sex couples to the Supreme Court to legalise gay marriage in India. The apex court has now referred the matter to a Constitution Bench of five judges, that will hear it on April 18. In this Deep Dive, we will discuss the legislative and judicial battle that has ensued over demand for legalisation of same sex marriages. To give us both the constitutional and ideological perspective on this matter, we spoke to Arvind Narrain, a lawyer and an LGBTQI activist. According to Arvind, the institution of marriage offers a couple a range of rights like the right to be each other’s nominees in financial investments and insurance or the right to co-own property, which are limited only to the “blood and marriage” relationship between two individuals. Arvind also highlights how the institution of marriage offers a public and legal recognition of the relationship between two queer individuals and gives them security and protection. Marriage, according to Arvind, is thus an acknowledgement of the love that “dare not speak its name” and a celebration of that love in the public sphere.Arvind believes that despite the religious nature of most of the existing marriage laws in India, the Special Marriage Act brings forth a significant exception. The Special Marriage Act was also opposed tooth and nail by various religious communities to whom interfaith marriages were unfathomable or unjustified. Yet, the Indian Parliament -- in a bill piloted by Babasaheb Ambedkar -- recognised the fact that people can marry across caste and religious lines. That is the recognition of love marriage that is fundamental to the constitutional principle, according to Arvind.The possibility of marriages across lines of gender and sexuality is thus an extension of the constitutional principle that grants people the right to marry across religion and caste. Since the Special Marriage Act is a secular law that recognises the right to love and marry outside of the Indian context of religion and caste, Arvind believes the marital rights of the queer community also belong there, as an extension of the right to marry outside the “natural order”.Audio production: Shantanu Nanoti