On Tuesday, India's highest court stated that it lacks the authority to legalise same-sex marriages. The Chief Justice of the country emphasised that the formulation of such a law falls within the jurisdiction of the parliament.
A five-judge panel, led by Chief Justice DY Chandrachud, deliberated on this matter from April to May this year and delivered their verdict on Tuesday. As he began reading the verdict, Chandrachud acknowledged the existence of varying opinions on the extent to which India should embrace same-sex marriages.
Of the remaining four judges, two concurred with Chandrachud's view that the court should not legalise same-sex marriages, establishing a majority opinion. The remaining two judges have yet to express their stance on the matter.
This decision follows a historic 2018 ruling by the Supreme Court, which abolished a colonial-era ban on gay sex in India. It's worth noting that in Asia, only Taiwan and Nepal currently permit same-sex unions, as the region continues to be predominantly influenced by conservative values in politics and society.
The government led by Prime Minister Narendra Modi had opposed the petitions, characterising them as "urban elitist views" and contending that the appropriate forum for discussion and legislation on this issue is the parliament. Additionally, they argued that such marriages do not align with the traditional Indian family structure, which consists of a husband, a wife, and children.
Victory seems like a far-fetched goal
A petition filed by Sameer Samudra and Amit Gokhale, who married on September 18, 2010, was denied registration of their marriage under the Hindu Marriage Act by the Registrar of Marriages. Speaking on the verdict with the newsweekly, Sameer Samudra said, “I really liked the detailed Court analysis this verdict provided. While we appreciate the progressive attitude of the Supreme Court of India and the specific guidance it has given to the Central Government for the inclusion of LGBTQ+ individuals in all walks of life, I wish they would have given full marriage rights or at least allowed civil unions. I truly wished they would have been more direct and more inclusive in giving equal rights on all fronts. Having said that, we know we will need to continue this fight for equality and we envision Indian LGBTQ+ individuals to live a life of dignity and respect. Now the work starts on how we can execute the guidance given and how we can collaboratively work with the Central Government and other organisations to make equitable policies a reality. It’s a step in the right direction although victory seems like a far-fetched goal.”
Supreme Court's ruling is disappointing
Zainab Patel, a petitioner and activist for the marriage equality case, said that the ruling was a "day of sadness and yet of a firmer resolve." "While the Supreme Court of India missed a once-in-a-lifetime chance to make LGBTIQ+ Indians truly free to love – We, India's children, will continue our struggle where marriage equality doesn't remain a distant dream.
“The Supreme Court's ruling is disappointing for the LGBTIQ+ rights in India, but it is not the end of the fight for marriage equality. LGBTIQ+ activists and supporters have vowed to continue their struggle until all Indians have the right to marry the person they love, regardless of their gender identity or sexual orientation.”
Pleased with the positive articulation of queer rights in India by the Chief Justice of India
Raga D’Silva, Chair of Trustees: London LGBT+Centre told us, “As an intervenor in the current same-sex marriage equality fight in India, I feel absolutely gutted with the verdict. I am of Indian origin, legally married to my same-sex partner here in the UK. The fact that my marriage is not legally recognised in India, although heterosexual couples married in foreign countries are, seems very unfair. All we want is a right to marry, choose who we wish to marry and have the legalisation in our favour so we can enjoy the basic rights open to heterosexual citizens of the country. Having said that, I am personally pleased with the positive articulation of queer rights in India by the Chief Justice of India, D Y Chandrachud. I recognise that we need to keep fighting for our rights – the doors have been opened for us now, and we will get there.”
Udit Sood, one of the 21 petitioners told us, "Today’s ruling is a heartbreaking loss for Queer Indians. In prior judgements involving heterosexual couples, the Supreme Court recognized marriage as a Constitutionally guaranteed fundamental right—one that is “integral” to the right to life. Now, while addressing queer couples, the Court reverses precedent to effectively say “never mind, there’s no such right after all. The Court deals its most devastating blow to queer kids growing up in India. Their ruling tells those kids loud and clear that marriage (and all benefits that flow from it) are indeed available to them – all they need do is lie to themselves, to their partners, their families, and their communities. But if an honest life is important, then dreams of a socially and legally recognised family must be abandoned. I’m disappointed, to put it mildly. But our community understands reliance and perseverance. We will continue to push forward because that is what we do and who we are."
