India: Top court declines legalizing same-sex marriage
October 17, 2023
On Tuesday, India's Supreme Court said it cannot legalize same-sex marriages. Supreme Court Chief Justice DY Chandrachud said such a decision "lies within the domain of parliament and state legislatures to determine the law on marriage."
Chandrachud added that India still had a duty to protect those in same-sex relationships from discrimination.
"Our ability to feel love and affection for one another makes us feel human," he told the court.
"This court has recognized that equality demands that queer unions and queer persons are not discriminated against."
The court also expressed its support for adoption by unmarried couples, including same-sex ones. Chandrachud added that there is nothing to probe that only heterosexual couples can provide stability to a child.
Why was the Supreme Court ruling on same-sex marriage?
Tuesday's hearing comes after the top court of the world's most populous country in 2018 ruled in favor of eradicating a colonial-era law that effectively banned gay sex.
While Indian society is still largely dominated by traditional values, LGBTQ rights are slowly gaining more acceptance in India.
Taiwan and Nepal are currently the only countries in Asia that allow same-sex unions.
India does not currently recognize same-sex marriage, which means LGBTQ couples do not have access to some legal benefits of marriage such as adoption, insurance, inheritance and so on.
A five-judge bench of the Supreme Court, headed by India's Chief Justice Chandrachud heard arguments on the case over the course of several days in April and May.
Legalization of same-sex marriage would have led to significant socio-cultural changes, and adaptations to family laws.
However, India's Bharatiya Janata Party (BJP) government has opposed the move, arguing that the parliament should debate the matter before. It believes the appeal represents "urban elitist views."
The BJP has also previously said that such marriages are not "comparable with the Indian family unit concept of a husband, a wife and children."
What are same-sex couples saying?
People from India's LGBTQ community say they continue to face discrimination in their daily lives, despite the 2018 ruling. They argue that legal backing for same-sex marriage would safeguard constitutional rights for the community.
The Special Marriage Act (SMA) is a law that was passed originally to legalize interfaith unions. Now, LGBTQ couples are arguing their marriages should also be recognized under the SMA.
Along with not recognizing same-sex marriages, Indian law does not provide for civil unions. Gay and lesbian couples are also not allowed to have children born with the help of an Indian surrogate mother.
An LGBTQ person can apply to Central Adoption Review Authority for adoption only as a single parent.
LGBTQ couples have still been participating in commitment ceremonies, which are not legally binding but express a couple's lifelong commitment to one another. Couples often have big destination weddings and carry out traditional Indian wedding rituals.
tg/wmr (AFP, Reuters)