Why is India discussing same-sex marriage? 5 points

The Supreme Court's five-judge bench headed by Chief Justice DY Chandrachud on Wednesday continued hearing a batch of petitions seeking legal recognition of same-sex marriages in India.

Read here: 'If you go back to Indian texts…': Gay marriage petitioners to Supreme Court

The petitions before the apex court include those seeking recognition of same-sex marriage under various Acts, like the Special Marriage Act, Foreign Marriage Act and the Hindu Marriage Act.

The arguments from both sides put forth their views. The same-sex couples and LGBTQIA+ activists hope for a judgement in their favour as they strongly argue that marriage is a union of two people - not just a male and a female, while the government strongly opposes this view and affirms that a marriage can take place only between a man and a woman.

"Same-sex marriages are not comparable with the Indian family unit concept of a husband, a wife and children," the government argued in the court.

5 points on the case:

1. Around five months ago, two gay couples moved to the Supreme Court, seeking recognition of same-sex marriage under the Special Marriage Act. The apex court subsequently issued notices on the plea and in January 2023, directed the transfer of all petitions over the matter pending before the different High Courts.

2. The top court asked the government to file its response over the matter. The Centre in its affidavit opposed the pleas seeking legal validation of same-sex marriage. It said granting legal recognition to same-sex marriages would cause complete havoc to the delicate balance of personal laws and accepted societal values as the concept of an Indian family involves a biological man and woman.

3. On the other hand, the petitioners asserted their rights arising out of the right to life and personal liberty and the right to dignity, which are guaranteed by the Constitution in its Preamble and Articles 14, 19 and 21. They cited that the right to marry cannot be withheld from a section of people based on their sexual orientation.

4. The Supreme Court in March noted that legalising same-sex marriage in India is a 'seminal issue' and formed a five-judge constitutional bench to further make a decision on the plea.

5. The Supreme Court decriminalised homosexuality in 2018 by scrapping a colonial-era ban on gay sex, though same-sex marriages continue to remain unrecognised by Indian laws.

Read here: SC overrules govt objection, begins same sex hearing

According to a Pew survey published by BBC (article beyond paywall), over the years, acceptance of homosexuality has also grown in India. In 2020, around 37% people in India were in the favour of same-sex union, an increase of 22 percentage points from 15% in 2014, the first time the question was asked in the country.

The case is being seen as a milestone event for LGBT rights in the country.