Recently, the Supreme Court of India clubbed over 20 petitions demanding legalisation of same-sex marriages and referred them to a 5-member constitutional bench that will start hearings in April, 2023. While the queer community and the allies wait for the verdict, the Centre has written to the Supreme Court and made its stand very clear – that it continues to believe in and support the conventional, cis-het marriages and is of the opinion that only those should be deemed legal.

This stance is unsurprising, unfortunate and full of inconsistencies, especially when seen from a moral standpoint. Here, we tackle some of the claims made by the Centre in an effort to highlight the same.

Same-Sex Marriages
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1. “The notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex. This definition is socially, culturally, and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation”.

Laws are created by humans for the betterment of humanity and ideally to bring some structure to social lives. These laws can and should be challenged…they should be changed if needed, with enough faith in the strength of the social fabric of the nation to accept them and make them a part of the culture, eventually if not immediately. It is not becoming of the biggest democracy in the world to function on “presupposed” notions.

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2. “Amongst Hindus, it is a sacrament, a holy union for performance of reciprocal duties between a man and a woman. In Muslims, it is a contract but again is envisaged only between a biological man and a biological woman. It will, therefore, not be permissible to pray for a writ of this court to change the entire legislative policy of the country deeply embedded in religious and societal norms”.

In a modern society, people should have the right to practice their religion the way they want, as long as they are not causing harm to others. They should also have the right to not practice any religion. In both cases, they should not be under an obligation to marry (or not to marry) in accordance of the mentioned “religious norms”.

Basing laws on widely accepted ‘sermons from God’ is something that in itself can be put to debate.

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3. Same-sex marriages do not align with the idea of the “Indian family unit”.

“Indian family unit” here means “a biological man, a biological woman, and their children”.

The concept of “family” and who constitutes it, needs to be expanded and made more inclusive. Laws, as they are currently, are problematic as two people from the queer community in a romantic relationship cannot even claim to be a family. But there is more to it. Linking “family” with marriage in such strict, regimental terms is also wrong. There is an insinuation that marriage is a bigger, more respectable institution than other forms of romantic relationships like live in, etc, and that is regressive.

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4. ‘Biological man’ is the husband, ‘biological woman’ is the wife – and they are ‘father’ and ‘mother’ to their children, respectively.

People’s identities cannot be dictated to them – especially not on the basis of dated perceptions of gender/gender roles. Anyone who identifies as a woman, is a woman and anyone who identifies as a man, is a man. So the father-mother logic stated above goes out of the window. Additionally, there are people who do not identify with any gender, so they cannot be parents? That does not add up.

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Now, while we are at it, let us also address the statement given by the RSS, backing Centre’s stance on the subject.

5. “Marriage is a sacrament in Hindu philosophy of life, not a contract but an institution, not an instrument for enjoyment, and people of same sex cannot marry for their personal interests.”

This may come as a shock to some but marriage is exclusively an institution based on personal interest! And there is no harm in marrying for enjoyment, that should ideally be one of its main purposes.

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The duty of the government and the judiciary is to do what is fair, and the perception of the masses should not stop them from performing this duty (since that’s their argument).