India's Supreme Court weighs in on same-sex marriage

Same-sex marriage activists march through the streets during New Delhi's Pride Parade last January.

India's Supreme Court will hear a series of cases challenging the same-sex marriage ban on Monday.

If the nation's highest court rules to legalize same-sex marriage, India will become the second country in Asia to legalize same-sex marriage, after Taiwan.

As the world's largest democracy and the second most populous country on the planet, its influence elsewhere in the world could also be considerable.

So far, the majority of the 32 jurisdictions that have already passed equal marriage laws are found in America and Europe.

According to the plaintiffs – several same-sex couples – the Special Marriage Act, which refers to husband and wife, violates several articles of the Indian constitution.

They allege that the 1954 law, which celebrates marriage outside of religion, should allow same-sex couples to have the same legal right to marry as heterosexual couples.

Other petitions also touch on the Marriage Abroad Act, governing unions where at least one spouse is Indian.

[The law] should refer to "spouses" to encompass people regardless of their sex or gender identity, alleges Jayna Kothari, an attorney who represents three plaintiffs in one of the Supreme Court cases.

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So far, Prime Minister Narendra Modi's government, in power since 2014, has refused to legalize same-sex marriage.

In a document filed Sunday in the Supreme Court , the Indian government said the court could not be asked to change the country's entire legislative policy, which is deeply rooted in religious and societal norms.

But the Supreme Court is not at the tail of the government. Already in 2018, she spoke out to decriminalize same-sex relations between consenting adults, believing that the British law, dating from colonial times, was unconstitutional.

Lawyer Jayna Kothari, co-founder of India Center for Law and Policy Research, is representing some of the plaintiffs in the case.

According to Jayna Kothari, the historic decision was just the beginning. LGBTQ+ people must now access full recognition of their rights as citizens.

Decriminalization only really makes sense if positive rights are granted, she says, which includes the right to have a family, the right to have property, the right to adopt.

Indo-Canadian Gaurav Bhatti and his partner, Saattvic, moved to Vancouver in 2020, tired of waiting for LGBTQ+ rights to evolve in India.

Even if he is eligible to marry in Canada, the couple would like to have a ceremony in India with their family present.

Saattvic, who is an Indian citizen, is among the plaintiffs whose the case has been transferred to the Supreme Court.

I do it for those young people who live in the villages and who have no means of expressing themselves, he says. This is to give them a chance to live their lives with dignity.

Saattvic (at right) moved to Canada with her partner Gaurav Bhatti (left) because LGBTQ+ rights in India were moving too slowly for her liking.

Saattvic, a former actor turned economist, believes that discrimination against gay people, often educated and able to leave the country, leads to a brain drain.

These same people will get up and go if you don't give them equal rights, and that has consequences for the whole economy, he says.

The economist cites a World Bank study from 2014, estimating that India was sacrificing up to 1.7% of its GDP at the time due to factors related to discrimination against LGBTQ+ people.

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A Supreme Court victory over same-sex marriage could take time to materialize, however, believes Sukhdeep Singh, founder and director of Indian magazine Gaylaxy.

Any social change takes time to reach a point where it improves, he judges.

According to journalist Sukhdeep SIngh, founder and director of the LGBTQ website Gaylaxy, a victory would not benefit everyone as much . Poorer women still risk being left behind.

The reporter expects a backlash from more conservative politicians and religious groups if the Supreme Court legalizes same-sex marriage.

MP Sushil Kumar Modi recently spoke out against gay marriage, saying it would wreak havoc.

Ultimately, however, Sukhdeep Singh analyzes, a victory would have repercussions elsewhere in Asia and around the world.

With information from CBC