Clipped from: https://www.financialexpress.com/opinion/the-pink-rupee-imperative/3066143/
Recognising same-sex marriage would unlock gains for the economy, while giving the LGBTQ+ population the same economic rights as their heterosexual peers.
The progressive judicial leadership of the current Chief Justice DY Chandrachud is commendable. (IE)
The Supreme Court of India may be on the cusp of legalising gay marriage. Last week, it heard final arguments in a historic group of petitions to legalise such unions. Although it might seem like an act of ‘tempting fate’ to predict the verdict of the Court, however, looking at the Court’s wider jurisprudence on the fundamental right to marry in India, the chances of it recognising same-sex marriage on a par with heterosexual marriage look optimistic.
For example, the Court in separate judgments in 2006 and 2014, in the context of inter-faith and inter-community relationships, has held that the “freedom of choice in marriage” is an inherent aspect of Article 21 of the Constitution, which guarantees Indian citizens the fundamental right to life and personal liberty. The Court held that such liberty includes within its fold the inherent right to marry someone of one’s own choice. Given that the Court decriminalised homosexuality in 2018, to deny the civil liberty of marital unions to a legally recognised group of sexual minorities seems constitutionally improbable.
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The progressive judicial leadership of the current Chief Justice DY Chandrachud is commendable. His majority opinion in the Puttaswamy case of 2017—where the Court unanimously upheld the fundamental right to privacy for Indian citizens—extended the right of privacy to one that protects a citizen’s autonomy over basic personal choices, including those of family life and marriage.
Following his lead, the Court in quick succession—in March and April of 2018—decided cases upholding the right of a person’s choice to marry as a fundamental part of individual dignity, life and liberty. Again, in August 2022, Chandrachud—while opining on the ‘Maternity Benefits Act’—acknowledged that “atypical” families, including single parents, unmarried partnerships and queer relationships, are deserving of equal protection under the law. A favourable decision, in the present matter, would make India second jurisdiction in Asia to allow marriage equality after Taiwan, and could cement the marriage rights for all of India’s 1.4 billion people.
But beyond the Constitutional arguments in support of marriage equality, I would want to stress those relating to the Indian economy. According to a 2016 report by the World Bank, the Indian economy incurred a loss of $32 billion of GDP due to the exclusion of its LGBTQ+ population from the economic mainstream. Earlier research, from 2014, demonstrated that approximately 0.1 to 1.7% of India’s GDP is lost due to such exclusion. As the petitioners argued before the Court—the demand for marriage equality is not merely a question of equal dignity, but given that marriage is also a ‘bouquet of economic rights’—it is equally a question of such legitimate rights for India’s LGBTQ+ population.
In 2012, as per government estimates, India’s LGBTQ+ population stood at 2.5 million; however, as per recent global estimates it could be at least 10% of the country, or more than 135 million people—with a majority of such people being ‘young adults’. Just for perspective, India’s LGBTQ+ population would exceed the combined population of the UK and France. At stake are the economic rights of such a large section of the world’s sexual minority.
The US’s ‘Williams Institute’, in 2020, reported that within the first five years of the June 2015 US Supreme Court’s decision in Obergefell v. Hodges, which extended marriage equality nationwide, same-sex weddings generated an economic boost for state and local economies by an estimated $3.8 billion and generated an estimated $244.1 million in state and local sales tax revenue. Such spending alone supported an estimated 45,000 new jobs for one full year. The legalisation of same-sex marriage could have a similar ripple effect on the Indian economy. But these obvious fiscal benefits just scratch the surface of how the overall economy might gain.
Hundreds of US employers, including Google, Apple, Verizon, Walt Disney, Viacom, Nike, Morgan Stanley, and Microsoft, had signed two separate amicus curiae briefs before the US Supreme Court supporting marriage equality. They argued that it is in the interest of big companies for same-sex couples to be allowed to marry because they believe it’s good for their business. Such rights would allow these businesses to recruit and retain the most creative and productive workers to make their businesses competitive, including LGBTQ+ workers. Furthermore, they argued that they want their LGBTQ+ employees to be able to focus on their jobs, not on dealing with the stigma and inequality that creates problems for their families. When Taiwan became the first Asian country to legalise same-sex marriage in 2019, during the parliamentary debates several major multinational companies, including Google, Airbnb, Deutsche Bank, EY, Mastercard, Microsoft and the Taiwan-based O-Bank Co, similarly lauded the benefits of same-sex weddings for the country’s economy. Although such participation by members of India Inc was conspicuously absent from last week’s proceedings before the Indian Supreme Court, parallel arguments can still be made for the Indian economy. A growing number of Indian and multinational companies in India with progressive and inclusive diversity policies would want to recruit, retain and treat their LGBTQ+ employees equally if only the law would let them.
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The World Bank, in 2014, said data from India showed how stigma and exclusion of LGBTQ+ people were likely to generate negative economic costs on jobs, particularly from lost productivity. A decision in favour of marriage equality will be crucial for a generation of young LGBTQ+ Indians to bring their full self to the workplace—helping them unleash the best of their creative or entrepreneurial prowess. Earlier this month, the ‘Indian Psychiatric Society’, in a statement supporting the legalisation of same-sex marriages, stated that it will help eradicate stigma and discrimination, and give them whole new space, and freedom of acceptance in society—leading to overall mental well-being of India’s LGBTQ+ population.
As per a 2019 estimate, LGBTQ+ Indians earn about $113 billion a year. As this number grows and the clout of the ‘Pink Rupee’ strengthens, social acceptance and political patronage will follow. The Supreme Court, by legalising marriage equality, could just set that ball rolling.
The writer is professor of competition law, Jindal Global Law School
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