India’s LGBTQ+ Advocates Express Deep Disappointment with Recent Ruling

In a disappointing ruling for LGBTQ+ rights campaigners in India, the country’s top court refused to legalize same-sex marriages on Tuesday. The responsibility to decide on same-sex marriage has now been passed back to Parliament. Chief Justice DY Chandrachud, however, urged the government to protect the rights of the queer community and end discrimination against them. The five-judge bench previously heard 21 petitions seeking the legalization of same-sex marriage. Chandrachud explained that while there were varying opinions among the justices on this issue, the court does not have the authority to grant LGBTQ+ people the right to marry, as that falls under the legislative function of Parliament.

“This court is not authorized to make laws; it can only interpret them and enforce them,” stated the chief justice, reiterating that it is Parliament’s responsibility to amend marriage laws to include queer unions. Over the past decade, legal rights for LGBTQ+ individuals in India have expanded largely due to intervention by the Supreme Court. In 2018, the court struck down a colonial-era law that criminalized gay sex and expanded constitutional rights for the gay community. This decision was hailed as a historic victory for LGBTQ+ rights, signaling progress in the country. However, Prime Minister Narendra Modi’s government has resisted the legal recognition of same-sex marriage and rejected several petitions advocating for it. Petitioners had hoped that the Supreme Court would challenge the government’s stance.

While some justices emphasized the need for the state to protect queer couples from harassment and discrimination in accessing basic needs, such as opening joint bank accounts, they did not grant legal recognition to same-sex unions. Instead, the court accepted the government’s proposal to establish a special panel to explore granting social and legal benefits to same-sex couples. India is estimated to have at least 2.5 million LGBTQ+ individuals, according to government figures from 2012. However, global estimates and gay rights activists believe the number could be as high as 10% of the population, exceeding 135 million. Homosexuality has long been stigmatized in Indian society, although attitudes towards same-sex couples have gradually shifted in recent years. India now boasts openly gay celebrities, and some high-profile Bollywood films have addressed gay issues.

According to a Pew survey, acceptance of homosexuality in India has increased by 22 percentage points, reaching 37%, between 2013 and 2019. However, same-sex couples often face harassment in many Indian communities, regardless of their religious background. Lawyers representing the petitioners argued that marriage is not limited to a union between a man and a woman and that the concept of marriage has evolved over time. They asserted that the government’s refusal to recognize same-sex unions violates the constitutional right to equality and denies them the same rights enjoyed by married heterosexual couples, such as adoption, medical insurance, pensions, and inheritance. Karuna Nundy, a lawyer representing the petitioners, expressed deep disappointment, stating, “They are not afforded the dignity and rights that they are due.” More information can be found here.