Politicians will not challenge the norms of a mostly heterosexual culture just because some people want to live together. Hence, civil unions could be a decent starting point for same-sex couples. The Government of India has expressed its opposition to same-sex marriage to the Supreme Court, stating that such unions are not in keeping with the traditional Indian family and that ‘obviously separate’ groups should not be regarded the same.
The executive and legislative branches’ perspectives on this matter are heavily influenced by the conservative and traditionalist nature of most of Indian society. Nonetheless, it is the responsibility of the Supreme Court to protect basic liberties, regardless of public opinion. The Center for Justice and Inclusion (CJI) has made the encouraging observation that “atypical forms of the family unit” should be afforded legal protection.
Several regions have already codified marital equality into law. The majority of people in nations like Australia and the United States now support legalising same-sex marriage, and even traditionally religious countries like Ireland have legalised same-sex marriage after a vote. Although same-sex marriage is still banned in Japan, 256 municipalities and 12 prefectures there have adopted “partnership oath systems,” which are effectively legalisations.
The rights and responsibilities of a legal couple, including being by each other’s side at a hospital bedside, having and raising children, owning and inheriting assets, operating a bank account, being counted as family for tax or immigration purposes, qualifying for spousal support, getting employment benefits, and more, are available to those who are in registered civil unions or domestic partnerships in other jurisdictions that have not yet legalised same-sex marriage.
In certain parts of Europe, such as France and northern Europe, civil partnerships have surpassed the popularity of marriage. The judicial system and legislative body of India need to give this careful consideration. In reality, if political elites are uncomfortable with the idea of gay marriage, civil union offers a practical alternative. Equal marriage advocates might also regard this as progress.
The Special Marriage Act of India is a civil law that applies independently of the personal laws of different faiths. There is no denying that this Act must protect the freedom to marry for all people. The political class, however, cannot deny the existence of suffocating social conservatism. Thus, civil unions may be a great first step. And not just for the LGBTQ+ community. SC has often been called upon to intervene on behalf of married or domestically committed heterosexuals. As a result, couples who want a formal recognition of their union might consider forming a civil union.
