New Delhi – In a major setback for LGBTQ rights activists, the Supreme Court of India on Tuesday declined to legalize same-sex marriage in the country. The top court stated that it cannot make law and that the matter needs to be taken up by the Parliament.
This decision leaves the queer community in India with limited legal options to fight for marriage equality.
The Five-Judge Bench Divided on Interpreting Law
A five-judge Constitution bench headed by Chief Justice of India DY Chandrachud was debating a clutch of petitions filed by various gay couples seeking legal recognition of same-sex marriages.
During the hearings over the last few weeks, the bench expressed diametrically opposite opinions on interpreting the law and whether the court can intervene.
“This court cannot make law, it can only interpret it and give effect to it,” CJI Chandrachud remarked during the proceedings. The stark divisions within the bench were apparent as four different judgements were penned, reflecting the lack of consensus.
Activists Decry Judgement As “Relegating Queers to Second-Class Citizens”
LGBTQ activists lashed out against the verdict stating it deprives the community of fundamental rights. “Today the court has reaffirmed that queer citizens will be relegated to an unsympathetic legislature and an apathetic executive.
We are second-class citizens, no matter how many judicial platitudes say otherwise,” said lawyer Rohin Bhatt, one of the petitioners.
Activists pointed out that after decriminalizing Section 377 in 2018 and recognizing transgenders’ rights, the top court has faltered in taking the next step of legalizing same-sex marriages. They vowed to continue the legal battle through alternative means.
Government and BJP Remain Opposed to Same-Sex Marriages
The central government under Prime Minister Narendra Modi’s Bharatiya Janata Party (BJP) has maintained a position against same-sex marriages. In earlier affidavits, the government has told the court that gay marriages are against Indian ethos and family values.
“Our nation’s ethos and its value systems do not recognize marriages between same-gender couples,” the government had asserted. Nationalist groups allied with BJP have also characterized homosexuality as a western concept alien to Indian culture. They continue to mount opposition to laws they perceive as undermining traditional values.
Court Had Decriminalized Gay Sex in Historic 2018 Verdict
In a pathbreaking judgement in 2018, the Supreme Court had decriminalized Section 377 enacted during the British era. The draconian law punished gay sex with up to 10 years imprisonment and was employed routinely to harass the LGBTQ community.
By striking down Section 377, the top court paved the path for increased rights and progressive legislation.
However, in the absence of parliamentary backing, the judgment could not address ancillary issues like same-sex marriage. With the central government unwilling to amend discriminatory laws, activists pinned their hopes on the court interpreting civil rights in their favor. This judicial route now appears closed.
Global Trend Towards Marriage Equality Leaves India Behind
As a tsunami of change sweeps the globe with more than 30 countries legalizing same-sex marriage, India lags behind. The top court’s reluctance to intervene on the matter ignores the realities of love, companionship, family and societal acceptance that the LGBTQ community seeks through marriage rights.
By citing judicial limitations, the apex court also sidestepped an opportunity to shape social discourse and affirm dignity for all citizens. As leading jurists have pointed out, courts can catalyze change by challenging status quo reading down unjust laws. Tuesday’s judgment falls short of rising up to that calling.
What Lies Ahead for India’s Queer Citizens
In the aftermath of the Supreme Court ruling, India’s LGBTQ find themselves in legal limbo. Their relationships still have no legal sanction or protection. They face discrimination in personal aspects of life like buying homes, availing insurance, adopting children etc.
Bereft of constitutional remedies, the focus now shifts to building political consensus on marriage equality. But that seems an uphill task with the current dispensation in New Delhi. In the interim, queer citizens will continue facing stigma and prejudice in daily lives. A long struggle for equality lies ahead.