Same-sex marriage: Oppn parties cautious, want SC to take the lead as it did on Section 377

Barring individual voices, leaders in most parties, speaking off the record, said they would rather the Supreme Court set the ball rolling by pronouncing its verdict either in favour or against same-sex marriage, like it had done in the case of Section 377 of the Indian Penal Code. With the government dragging its feet, the Supreme Court had in 2018 scrapped the Section that criminalised homosexuality.

The Congress, which had enthusiastically welcomed the 2018 Supreme Court judgment, was circumspect about same-sex marriage. “This is hardly an issue to think about now,” a senior leader said, when asked about the party’s view.

Some of the leaders argued in private that same-sex marriage was an alien concept and issues like these didn’t figure in the agendas of their parties.

Among those that openly backed same-sex marriage is the CPI(M). “We support the rights of same-sex partners to get legal recognition of their relationship as marriage. The Court must intervene as the present government has made it clear that it does not support such a right,” senior CPI(M) leader Brinda Karat told The Indian Express.

Earlier too, the CPI(M) and CPI were the only parties to take a clear-cut position supporting decriminalisation of same-sex relations, when the Delhi High Court first ruled in 2009 that consensual intercourse between two adults was not illegal. The Supreme Court endorsement took another nine years.

Asked for his views, Congress Lok Sabha MP Shashi Tharoor said he could not speak for his party but he would certainly support recognition of same-sex marriage.

“In the event of resistance from the majority, I would also be open to a two-stage process under which we initially legally enable ‘civil partnerships’ (contract arrangements that grant the legal rights of spouses to same-sex partners). After seeing how that works in Indian society, at the second stage, same-sex marriage might be permitted. But denying civil rights to such partners is wrong and unjustifiable and should be remedied without delay,” he said.

His party colleague and Lok Sabha MP Manish Tewari said he too supported same-sex marriage in his personal capacity. “I do not speak for the Congress. My personal view as an MP is that after a five-judge Constitution Bench of the Supreme Court read down Section 377 of the IPC unanimously… there is no criminality if people of the same sex cohabit. Under those circumstances, a law that legalises that relationship should be a natural corollary,” he told The Indian Express.

Senior lawyer and Congress Rajya Sabha MP Abhishek Singhvi, who is appearing as lead counsel for one of the parties, is arguing on the same grounds – that the existing law can be read down by courts to subsume same sex-marriage. He told The Indian Express that if the BJP government does so, “it will satisfy most petitioners”. However, he added, “it is a hypothetical and meaningless question because the government has vociferously opposed same-sex marriage and any legislation will only ban it explicitly, not allow it”.

Like the Congress, other parties too ducked the question.

According to sources, one leader who might lend his individual support to the matter is senior Trinamool Congress leader and its Leader in the Rajya Sabha Derek O’Brien. He is said to have given a notice for introducing a private member’s Bill seeking legalisation of same-sex marriage, though his party’s view on the matter is not clear.

Asked about the JD(U) stand, its leader K C Tyagi said: “I am not up to date with the matter. I cannot react so quickly. Let me think it over.”

Another leader of a party from the Hindi heartland said he personally believes that the government should accept the “reality” and legalise same-sex marriage, but could not comment since he felt his party may not share his view.

Bharat Rashtra Samithi Rajya Sabha MP K Keshava Rao refused to comment, same as leaders of the Aam Aadmi Party and Shiv Sena.