On 17 October, 2023, the Supreme Court said that while discrimination against same sex couples must end, now it is for the Parliament of India to decide on the legality of same sex marriage in the country.
India’s Supreme Court has declined to legalize same-sex marriages, redirecting the issue to Parliament. While this decision has left LGBTQ+ activists and petitioners disappointed, it underscores the ongoing struggle for equal rights and recognition for queer couples. The future of LGBTQ+ rights in India remains uncertain, as the nation grapples with the intersection of tradition, culture, and evolving societal values.
The background to the decision began in 2018 in a landmark judgment the Supreme Court of India decriminalised all same-sex activity but left the question of same-sex marriage open. In 2022 the case of Supriyo v. Union of India, that challenged the government’s refusal to recognise same-sex marriages under the Special Marriage Act was agreed to be heard and a five-judge bench began hearing petitions in April 2023. The Solicitor General then told the Supreme Court bench that it was intended to form a parliamentary committee to examine the possibility of providing limited legal rights to same-sex partners.
There was a small hope for homosexual couples in India during the period when the issue was being considered by the Court, however, in a significant and closely watched decision some days ago, India’s Supreme Court passed the decision to Parliament, disappointing LGBTQ+ activists and advocates in the country. Chief Justice DY Chandrachud emphasized that this issue should be addressed by Parliament, leading to questions about the future of LGBTQ+ rights in the world’s most populous country.
Aakar Patel, chair of board at Amnesty International India, said: “It is imperative that the government does not delay in implementing this through the Committee proposed by the Supreme Court and accepted by the Solicitor General and ensure opportunities for meaningful public consultation on this important issue.”
The Court’s Ruling:
After hearing 21 petitions seeking to legalize same-sex marriage, the five-judge bench refrained from granting LGBTQ+ individuals the right to marry, citing that this is a legislative matter.
The ruling left LGBTQ+ activists and petitioners disheartened, as they had invested hope and effort into these petitions to secure the same rights and privileges enjoyed by heterosexual couples. While the Court did not set a specific timeline for Parliament to act, the decision underscored the need for legislative change to acknowledge and protect the rights of queer couples.
Expanding LGBTQ+ Rights in India:
Over the past decade, legal rights for LGBTQ+ people in India have gradually expanded, largely due to Supreme Court interventions. As previously mentioned, 2018, the Court repealed a colonial-era law that criminalized gay sex, marking a historic victory for LGBTQ+ rights and recognizing the need for a more inclusive future. Despite this progress, the government under Prime Minister Narendra Modi has remained resistant to legalizing same-sex marriage, citing religious values and cultural norms.
Government’s Opposition and Arguments:
During the hearings, the government contended that marriage was a union exclusively between a biological man and a biological woman, reflecting traditional Indian values. They argued against recognizing same-sex unions, asserting that it conflicted with the nation’s cultural and religious beliefs. These stances have been met with criticism and resistance from LGBTQ+ activists and their legal representatives.
Legal Recognition and Equality:
Lawyers for the petitioners argued that marriage is fundamentally about the union of two individuals, not restricted by gender. They maintained that laws must evolve to encompass this evolving concept of marriage to ensure equality, law protection, and guarantees including rights related to adoption, medical insurance, pensions, and inheritance.
While the Supreme Court did not grant legal recognition to same-sex marriages, it accepted the government’s proposal to establish a special panel that will explore extending social and legal benefits to same-sex couples. Additionally, the justices urged the government to combat harassment and discrimination faced by queer couples in accessing basic services, emphasizing the need for public awareness and support.
Gay Lawyers supports India’s LGBTQI+ community in the fight for recognition.
Cynthia Cortés Castillo, Digital Marketing Executive