Indian LGBT+ campaigners have taken their case for marriage equality in the Delhi High Court.
And the court’s bench of Chief Justice DN Patel and Justice Prateek Jalan have agreed to listen to the case with an open mind. While noting they hadn’t made a legal decision yet, they commented ‘changes are happening across the world’.
However India’s Solicitor General Tushar Mehta is opposing the LGBT+ petitioners. He said: ‘Our culture and law don’t recognize the concept of same-sex marriages.’
The case comes almost exactly two years after the Supreme Court of India struck down the British colonial law against homosexuality in India. The scrapping of the anti-gay law – Section 377 – was the single biggest moment of legal liberation in LGBT+ world history.
Ever since, LGBT+ campaingers in the country have promised to keep fighting for true equality and acceptance. And access to same-sex marriage has emerged as a major battleground.
Now advocates Raghav Awasthi and Mukesh Sharma have signed a ‘public interest litigation’ at the Delhi High Court.
They argue that Section 5 of the Hindu Marriage Act of 1956 does not distinguish between same-sex and opposite-sex couples. Therefore, they say the court should rule that the act allows marriage equality.
It’s the second legal challenge demanding same-sex marriage in India. A same-sex couple from the state of Kerala, Nikesh and Sonu, also have a case pending in Kerala’s High Court.
They are disputing the bar on same-sex marriage under the Special Marriage Act of 1956.
Constitutional ‘Right to Marry’ applies to all
In the New Delhi case, the petitioners argue the ban deprives same-sex couples of rights, making them second-class citizens. They say in their plea:
‘Despite the fact that there is absolutely no statutory bar under the Hindu Marriage Act of 1955 and the Special Marriage Act of 1956 against gay marriage, the same are not being registered throughout the country and also in Delhi.
‘As a result of the same, there are many benefits that would otherwise be available to heterosexual married couples that are not available to them.’
They also argue that the Constitution of India has a Right to Marry as part of its Right to Life.
The plea adds:
‘That Right to Marry is also stated under Human Rights Charter within the meaning of the right to start a family. The Right to Marry is a universal right. It is available to everyone irrespective of their sexual orientation and gender identity.’
However Solicitor General Mehta, appearing for India’s government, claimed the court can’t legislate:
‘[The] Supreme Court only de-criminalised homosexuality nothing more or less.’
Mehta added: ‘Such marriages are contrary to the statutory provision, our society, our values do not recognise marriage between two people of same-sex.’
Nevertheless, the solicitor general said he had no instructions from the government on the specific issues the petitioners raise on behalf of LGBT+ Indians.
He said he was merely noting that he could think of several laws off hand that restrict marriage to ‘biological men and women’ only.
New Delhi court has made LGBT+ legal history before
The court’s decision could be far-reaching. Unlike in other countries, decisions of a high court on the constitutionality of a law apply throughout India. So if New Delhi or Kerala’s High Court decide for same-sex couples, the ruling would apply across India, not just in their states.
Moreover, New Delhi’s high court has a track record of this – in favor of LGBT+ people. In 2009, it struck down Section 377 – and therefore technically made gay sex legal.
However India’s Supreme Court overruled this decision in 2013. It wasn’t until 2018 that a larger bench of Supreme Court justices re-examined the issue, ruling in LGBT+ people’s favor.