Top court denies same-sex marriages in India
NEW DELHI — India’s top court on Tuesday refused to legalize same-sex marriages, passing the responsibility back to Parliament in a ruling that disappointed campaigners for LGBTQ+ rights in the world’s most populous country.
Chief Justice DY Chandrachud also urged the government to uphold the rights of the queer community and end discrimination against them.
Earlier this year, the fivejudge bench heard 21 petitions that sought to legalize samesex marriage.
Chandrachud said there were degrees of agreement and disagreement among the justices “on how far we have to go” on same-sex marriages, but the judges unanimously agreed that the court can’t grant LGBTQ+ people the right to marry because that is a legislative function.
The court accepted the government’s offer to set up a special panel that will explore granting social and legal benefits to same-sex couples.
One of the petitioners, Mario da Penha, said it was “a day to be disappointed, but not to lose hope.”
“There’s been tremendous work that has gone into these petitions, and many hopes and dreams of the queer community attached to them — to lead lives that most other Indians take for granted. The fact that the dream could not come to fruition today is a disappointment for all of us,” he said.
He added that it wasn’t yet clear if the court had set a mandate or timeline for Parliament to act.
“There are queer couples today that are already families and in relationships, and are pillars of society. That they are not afforded the dignity and rights that they are due is deeply disappointing,” said Karuna Nundy, one of the lawyers representing the petitioners.
Legal rights for LGBTQ+ people in India have been expanding over the past decade, mostly as a result of the Supreme Court’s intervention.
In 2018, the top court struck down a colonial-era law that had made gay sex punishable by up to 10 years in prison and expanded constitutional rights for the gay community.
The decision was seen as a historic victory for LGBTQ+ rights, with one judge saying it would “pave the way for a better future.”
Despite this progress, Prime Minister Narendra Modi’s government resisted the legal recognition of same-sex marriage and rejected several petitions in favor.
During the hearings, the government argued that a marriage is only between a biological male and a biological woman, adding that samesex marriages went against religious values and that the petitions reflected only “urban elitist views.” Religious groups too had opposed samesex unions, saying they went against Indian culture.
Lawyers for the petitioners argued that marriage is between two people, not just a man and woman. They said concepts of marriage have gradually changed with time and laws should acknowledge that.
Homosexuality has long carried a stigma in India’s traditional society, even though there has been a shift in attitudes toward same-sex couples in recent years. India now has openly gay celebrities and some high-profile Bollywood films have dealt with gay issues. According to a Pew survey, acceptance of homosexuality in India increased by 22 percentage points to 37% between 2013 and 2019.
India is estimated to have at least 2.5 million LGBTQ+ people, according to government figures from 2012. However, gay-rights activists and global estimates believe they number at least 10% of the population, or more than 135 million.
In May, Taiwan became the first jurisdiction in Asia to recognize same-sex marriages. In July, Nepal’s Supreme Court issued an interim order enabling the registration of same-sex marriages for the first time. It’s still not clear when the court would make its final decision on the case.