India’s Top Court Rejects Bid to Legalize Same-Sex Marriage

Shruti Mahajan
·3 min read
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India’s Supreme Court refused to legalize same-sex marriage, saying it’s an issue for Parliament, a disappointing outcome for millions of LGBTQ couples seeking equal rights.

The five-judge bench unanimously agreed that marriage isn’t a fundamental right, according to a ruling handed down in New Delhi on Tuesday. Reading his opinion on the case, Chief Justice D.Y. Chandrachud said the court doesn’t have the jurisdiction to recognize LGBTQ marriage and the change in law is in the hands of lawmakers.

India decriminalized homosexuality in 2018 but has yet to extend marriage rights to the LGBTQ community. Fewer than 40 countries recognize same sex marriage, including just two places in Asia — Taiwan and Nepal. India’s case was closely watched across the region, including in Thailand and South Korea, which are considering similar measures.

India’s chief justice said the institution of marriage doesn’t stay static or stagnant, but the court can’t make the law. “It can only interpret it and give effect to it,” he said.

The Supreme Court called on the government to set up a committee to look into the rights and entitlements of LGBTQ people, including assessing rules around medical rights and financial benefits — some of the issues that had been highlighted by petitioners in the case.

“This is very disappointing,” said Anjali Gopalan, activist and executive director of Naz Foundation. “We are back to where we began.” The Naz Foundation filed a Public Interest Litigation in 2001 to decriminalize homosexuality and were finally handed a victory by the Supreme Court in 2018.

During the court’s hearings earlier this year, the federal government opposed legalization, saying the legislature should decide the issue. It also argued that same-sex marriage is opposed to Indian values.

Marriage is governed under various codes in India, including the Special Marriage Act, a secular law that previously legalized intercaste and inter-religious unions. Lawyers for the petitioners — a diverse group of couples — pushed the court to extend the Special Marriage Act to same-sex marriage.

In its ruling, the apex court also held that transgender persons in heterosexual relationships have the right to marry under the existing laws. Two of the judges also were of the view that queer couples should have the right to adopt.

Bloomberg reached out to some of the petitioners, who declined to comment till they had read the judgment.

The main opposition party said that it would issue a detailed response after studying the judgment. “Indian National Congress has always stood with all our citizens to protect their freedoms, choices, liberties and rights. We, as a party of inclusion, firmly believe in non discriminatory processes — judicial, social, and political,” Jairam Ramesh, a leader of the Congress party said on X, formerly known as Twitter.

The petitioners argued that blocking them from marriage violated their rights under India’s constitution and created difficulties around inheritance and adoption. During the hearings, India’s government offered to set up a panel to look into those issues, but skirted the marriage topic. Government panels are often slow in enacting change.

“I was expecting some civil rights. I did not think they would give full marriage rights but I was expecting some civil rights for sure,” said Gopalan.

--With assistance from Swati Gupta, Bibhudatta Pradhan, Ruchi Bhatia and Anup Roy.

(Updates with comments in sixth paragraph.)

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