Government Opposes Same-Sex Marriage in Landmark Hearing

(Bloomberg) -- India’s government has opposed giving legal recognition to same-sex marriages as the Supreme Court begins deliberations Monday on petitions seeking equality for the LGBTQ community in a landmark hearing.

In its court filing, Prime Minister Narendra Modi’s administration has said that marriage is accepted “statutorily, religiously and socially” only between a biological man and a biological woman. Any deviation from this accepted form can only be voted by lawmakers and not ruled by courts, the affidavit argued.

The government said that formal recognition of marriage also affects related issues ranging from adoption to inheritance rights, and it is pertinent for the issue to be debated by the legislature while considering all views that could impact society.

The Indian government’s position echoes that of Singapore — where sex between men was decriminalized in 2022 but the government amended the constitution to give parliament the authority to define marriage. As of now, that rules out same-sex couples.

The outcome of India’s court case, closely watched in countries like Thailand, Greece, Japan and South Korea — where similar debates are gaining momentum — could set a precedent around the world. Grassroots lobbying and aggressive litigation by the LGBTQ community has already seen initial success in the South Asian country, where the top court has affirmed a constitutional right to privacy, toppling a colonial-era law that criminalized sex between men and expanded legal protections for “atypical” families.  

A judgment in favor of the LGBTQ community in India would more than double the number of people globally with marriage equality rights, eventually cementing inheritance, adoption and other protections for all 1.4 billion Indians. Just a handful of places outside of the West — and only Taiwan in Asia — allow same-sex marriage. 

The Indian government’s position on the issue has, however, remained the same since 2020, when a similar stance to oppose same-sex marriages was taken before a lower court. 

Invoking the idea of family, the Modi government in its affidavit has said that cohabitation of same-sex partners cannot be compared with the “Indian family unit concept of a husband, a wife and children.”

At least three lawyers representing the petitioners in the case declined to comment on the government’s affidavit ahead of the court hearing.

While stressing the accepted social norms on the concept of family and marriage, the government also laid down a list of statutory provisions of law — including adoption and inheritance — that will be impacted if same-sex marriage is permitted. 

The same government had however refrained from taking any position before the court in 2018, when the legal battle for decriminalizing homosexuality was fought.

(Updates with details.)

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