Same-sex marriage remains a distant reality in India, despite the existence of same-sex relationships. The denial of marriage equality has deprived the LGBTQIA+ community of a fundamental right for far too long. The roots of this issue trace back to the British colonial era, with the introduction of Section 377 in 1861, which criminalized homosexuality.

The fight for justice began in 2001 when the Naz Foundation petitioned against Section 377 in the High Court. This eventually led to the decriminalization of homosexuality in 2009. However, in 2013, the Indian Supreme Court overturned the High Court’s ruling. It was not until 2018 that the Supreme Court finally scrapped Section 377, legalizing homosexual relationships. Nevertheless, same-sex marriage remains out of reach for many, as India is not among the 34 countries where marriage equality is legal.

In response to petitions advocating for same-sex marriage, the Indian bar passed a resolution on April 23rd, opposing its legal recognition. This decision not only dismayed affected individuals, marriage equality advocates, and even lawyers, but also raised questions about its appropriateness. Ultimately, the Indian Supreme Court holds the discretion to determine whether the issue should be decided by the court or by parliamentary debate.

The institution of the family holds great significance in Indian society. However, the acceptance of same-sex unions lacks widespread support. Nonetheless, denying the rights of the LGBTQIA+ community based on societal and religious norms is unjust. The legalization of same-sex marriage is necessary to uphold fundamental rights, such as the right to privacy, and the right to equality. India being a democracy for the time being should reflect these values.

Contrary to popular belief, same-sex relationships have existed in Indian culture throughout its history. From depictions in ancient architecture, such as the Khajuraho temple, to discussions in Hindu texts like Vātsyāyana’s Kama Sutra, and the works of writers like Ismat Chughtai and poet Amīr Khusrau, India has a rich queer history. By legalizing same-sex marriage, there is an opportunity to shift societal perspectives and foster greater acceptance.

If the parliament fails to act and uphold the right to equality, there will undoubtedly be repercussions. With 34 countries already legalizing same-sex marriage, and Taiwan being the only Asian country to do so, India risks losing talented individuals to brain drain as they seek more inclusive societies elsewhere.

The opposition from the Indian government to the legalization of same-sex marriage has sparked intense debate. Solicitor General Tushar Mehta argues that parliament, not the judiciary, should define marriage, as it is deeply intertwined with religious, cultural, and traditional beliefs. The government highlights that while the right to privacy is recognized, it does not equate to the right to marriage. The state maintains that the legislature should decide on such matters, as rights are not absolute and are subject to legal frameworks.

The government asserts that only parliament holds the authority to determine the legality of same-sex marriage. Citing the U.S. Supreme Court case Dobbs v. Jackson, the solicitor general argues that the court should not legislate on matters that require democratic decision-making. Interpreting and amending existing marriage acts or introducing new laws through parliamentary debate is seen as the appropriate course of action.

The state argues that a thorough review of the entire legal system, rather than selective substitution of terms, is necessary to understand the implications of legalizing same-sex marriage. Key issues raised include defining the role of a “wife” in same-sex marriages and addressing property rights under the Special Marriage Act.

The LGBTQIA+ community has long struggled for equality, fighting legal battles and working to change societal mindsets. Legalizing same-sex marriage is a crucial step towards inclusivity and democracy. It is not an imposition of urban elitist views but rather an effort to improve the lives of marginalized individuals. The parliament has several options, including the creation of a separate civil union with legal benefits, recognition of same-sex marriages under existing laws, or launching anti-discrimination programs. Progress must be made to ensure justice prevails and that no citizen is denied their fundamental rights.