In an extensive judicial ruling, the Supreme Court of India has issued a compelling call to the government, urging them to establish legal recognition for same-sex couples in order to protect them from discrimination. However, the Court did not take the step of integrating these couples into the existing legal framework of marriage.
This pivotal case involved 21 distinct petitions brought forth by members of the LGBT+ community who passionately argued that their inability to marry amounted to a violation of their constitutional rights, effectively relegating them to the status of “second-class citizens.”
The government, in contrast, contested these petitions. This legal battle occurred just five years after India decriminalized gay sex, with the government maintaining that marriage should remain an exclusive institution reserved for unions between a man and a woman. They further asserted that those advocating for marriage equality were merely promoting an “urban elitist view” aimed at securing social acceptance.
The case was under the purview of the country’s most esteemed judge, Chief Justice DY Chandrachud, along with four other distinguished Supreme Court justices. The hearings extended until May 11 of this year, and after more than five months of deliberation, the verdict was reached.
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This court, though unable to create laws, holds the power to interpret and implement them,” emphasized the Chief Justice. The decision to expand marriage laws to encompass LGBTQ+ unions rests in the hands of the Parliament.
Despite the disappointment of the day, one of the petitioners, Mario da Penha, urged the LGBTQ+ community not to lose hope. He acknowledged the immense effort put into the petitions, which carried the hopes and dreams of the queer community to lead lives that many other Indians take for granted. While today’s dream may not have been realized, he held onto hope for the future.
Furthermore, it remains uncertain whether the court has imposed a mandate or timeline on Parliament to act. Without such a mandate, there is little pressure on Parliament to enact necessary legislation.
Karuna Nundy, one of the lawyers representing the petitioners, voiced her disappointment: “There are queer couples today who are already families and in relationships, contributing significantly to society. That they are not afforded the dignity and rights they deserve is deeply disheartening.”
Over the past decade, legal rights for LGBTQ+ individuals in India have expanded, largely due to interventions by the Supreme Court. In 2018, the court abolished a colonial-era law that criminalized gay sex and strengthened constitutional rights for the gay community. This was seen as a historic victory, paving the way for a brighter future.
However, despite this progress, the government resisted legal recognition of same-sex marriage, citing religious and cultural reasons. The court recognized that the issue of same-sex marriage is a matter for Parliament to address, a viewpoint supported by the government during the hearings.
Lawyers for the petitioners argued that marriage should be a union between two people, regardless of gender. They contended that the concept of marriage has evolved over time, and laws should reflect this evolution.
By failing to acknowledge such unions, the government was denying same-sex couples their constitutional right to equality, including benefits enjoyed by married heterosexual couples, such as adoption, medical insurance, pensions, and inheritance.
While the Supreme Court did not grant legal recognition to same-sex unions, they accepted the government’s proposal to establish a special panel to explore granting social and legal benefits to same-sex couples.
The Chief Justice rejected the notion that being queer was an “urban” concept, emphasizing that it transcends linguistic, social, and occupational boundaries.
While India’s society has shown a shift in attitudes toward same-sex couples, they still face harassment and discrimination in many communities. There is, however, growing acceptance, with openly gay celebrities and Bollywood films addressing LGBTQ+ issues. According to a Pew survey, acceptance of homosexuality in India increased significantly between 2013 and 2019.
Although the path to full legal recognition remains challenging, other countries in Asia, such as Taiwan and Nepal, have made progressive strides in recognizing and acknowledging same-sex marriages. The journey continues, and with each step, the LGBTQ+ community holds onto the hope of a more inclusive and accepting society.
