In a pivotal moment for LGBTQ rights in India, the country’s Supreme Court has delivered a verdict that denies an appeal to legalize same-sex marriages. This decision marks a significant setback for the LGBTQ community in the world’s most populous nation. The ruling, announced on Tuesday, followed extensive hearings held in April and May. Out of the five justices, three concluded that the matter should be determined by the parliament, steering the course of LGBTQ rights in a different direction.
Chief Justice Dhananjaya Yeshwant Chandrachud, while delivering the verdict, emphasized the importance of the court’s role in judicial review, and its need to avoid interfering with matters that fall under the legislative domain. He stated, “The court, in the exercise of the power of judicial review, must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain.”
Instead of legalizing same-sex marriages, the court has chosen to endorse a government proposal that aims to establish a panel. This panel’s purpose is to explore the potential of granting certain rights and benefits to same-sex couples. Chandrachud stressed that the state should provide legal protections for same-sex unions, as the denial of “benefits and services” granted to heterosexual couples violates their fundamental rights.
He went on to argue, “Choosing a life partner is an integral part of choosing one’s course of life. Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21 of India’s constitution.”
Furthermore, Chandrachud urged the government to take measures to ensure that LGBTQ individuals do not encounter discrimination. He suggested the establishment of hotlines and safe houses for those who are vulnerable, as well as ending medical procedures aimed at changing gender identity or sexual orientation.
This court’s decision follows a petition that contended the failure to recognize same-sex unions violated the constitutional rights of LGBTQ individuals. The Bharatiya Janata Party government, led by Prime Minister Narendra Modi, opposed the petition. Their argument was that this matter should be left for parliament to decide, as a ruling legalizing same-sex marriage would disrupt societal values.
The government stated, “Living together as partners and having a sexual relationship by same-sex individuals… is not comparable with the Indian family unit concept of a husband, a wife, and children.”
This ruling comes five years after India’s top court overturned a colonial-era ban on gay sex. However, Nitin Jain, a 26-year-old LGBT activist in New Delhi, expressed disappointment with the judgment, saying, “The demand was recognition of same-sex marriages, and the court said no. It has held the status quo. This is seen as an abdication of the court to fulfill its responsibilities.”
In a region where traditional values often influence politics, Asia has been slow to embrace LGBTQ rights. Taiwan and Nepal are the only places in the region that recognize same-sex unions. Even though homosexuality in India has been decriminalized since 2018, LGBT activists highlight that sexual minorities still frequently face discrimination in their daily lives.
Midi, a 28-year-old activist in New Delhi, expressed feelings of hopelessness among the queer community in India, stating, “I am angry and disappointed. There is a right-wing government in place, and the ministers have been openly speaking against queers and the LGBT community. It is again going to be a long struggle.
