For LGBTQ+ Advocates in India, a 'Deeply Disappointing' Ruling

Nation's top court punts decision on same-sex marriage to Parliament
By Newser Editors and Wire Services
Posted Oct 17, 2023 7:21 AM CDT
India's High Court Punts Gay Marriage to Parliament
LGBTQ community supporters and members wait for the Supreme Court verdict on petitions that seek the legalization of same-sex marriage, in New Delhi on Tuesday.   (AP Photo/Manish Swarup)

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 five-judge bench heard 21 petitions that sought to legalize same-sex marriage, per the AP. Chandrachud said there were degrees of agreement and disagreement among the justices "on how far we have to go" on same-sex marriages, but a majority of the judges agreed that the court can't grant LGBTQ+ people the right to marry, as that's a legislative function.

"This court can't make law. It can only interpret it and give effect to it," the chief justice said, reiterating that it was up to Parliament to decide whether it could expand marriage laws to include queer unions. 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 has resisted the legal recognition of same-sex marriage and rejected several petitions in favor of it. Petitioners had hoped that the Supreme Court would challenge the government's position.

But even as some of the justices urged that the state must make sure queer couples don't face harassment or discrimination in accessing basic needs, like opening a joint bank account, they stopped short of granting legal recognition to same-sex unions. Instead, 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. India is estimated to have at least 2.5 million LGBTQ+ people, per 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. 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.

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Per a Pew survey, acceptance of homosexuality in India increased by 22 percentage points, to 37%, between 2013 and 2019. But same-sex couples often face harassment in many Indian communities, whether Hindu, Muslim, or Christian. Lawyers for the petitioners argued that marriage is between two people, not just a man and woman, and that concepts of marriage have gradually changed with time and laws should acknowledge that. By not recognizing such unions, the government was depriving same-sex couples of their right to equality enshrined in the constitution and rights enjoyed by married heterosexual couples, from adoption and medical insurance to pensions and inheritance, they argued. "That they are not afforded the dignity and rights that they are due is deeply disappointing," said Karuna Nundy, a lawyer representing the petitioners. More here.

(More India stories.)

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