India’s Top Lawyer Stops Push to Legalize Same-Sex Marriages

September 15, 2020

India’s top lawyer has expressed his opposition against the legalization of same-sex marriage in response to a petition raised to the Delhi High Court, NDTV reports.

Not permissible: Making his submission to the High Court, Solicitor General Tushar Mehta said: “Our laws, our legal system, our society and our values do not recognize marriage, which is a sacrament, between same-sex couples.”

On Monday, the High Court heard a petition on legalizing gay marriages under the Hindu Marriage Act (HMA) and Special Marriage Act.
Mehta gave two reasons why the petition should not be permitted: “Firstly, the petition is asking the court to legislate and secondly, any relief granted will run contrary to various statutory provisions. Unless the court does violence to various laws, this cannot be done.”
According to Mehta, the provisions regulating marriages or prohibited relationships under the Hindu Marriage Act talk of husband and wife.
“Who would be assigned these roles where a same-sex couple was concerned,” he argued.
Delhi High Court Chief Justice DN Patel and Justice Prateek Jalan agreed with Mehta, noting that while the rest of the world may be changing, the same may or may not be applicable to India.

Fear of reprisals: Individuals seeking to legalize same-sex marriage in India took the Public Interest Litigation (PIL) route out of fear of reprisals according to the counsel for the petitioner.

Public interest litigations, which are guaranteed under part III of the Constitution of India, are undertaken to secure public interest and provide justice to socially-disadvantaged parties.
The judges, however, questioned the petition, saying the individuals who claimed to be affected were well-educated and could approach the court themselves.
The lawyer representing the petitioner, Abhijit Iyer Mitra, was then asked to provide details of the persons who were not permitted to register their same-sex marriage.
The judges have directed the petitioners to indicate more information about the concerned individuals’ efforts to register such marriages.
The case is set to be heard again on October 21.

2018 landmark ruling: Mehta’s opposition to the petition came in light of the 2018 ruling that overturned a “2013 judgement that upheld a colonial-era law, known as section 377, under which gay sex is categorised as an “unnatural offence,” according to BBC News.

The petition noted that gay marriages remain prohibited despite the Supreme Court decriminalizing consensual homosexual relationships.
Section 377 was a 157-year-old law from colonial-era times that criminalized homosexuality and “certain sexual acts” and would allow the offender to be punished by a 10-year jail sentence. Certain portions remain intact and enforced, such as “unnatural sex with animals and children.”
There were people who opposed the ruling, including Parliament member Subramanian Swamy, however, the Congress party and the UN expressed support for a more “inclusive society.”
Journalist Sandip Roy told BBC that although this ruling was momentous, “there were still hurdles to overcome, and a need for anti-discrimination laws.”
“I think we would be foolish to think that this is the end of the fight,” he said.

Image via Wikimedia Commons/ Mukesh Bari (CC BY-SA 4.0)

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