India’s top court rejects same-sex marriage, while voicing sympathy

Asia
By Editor_1
India's top court on Tuesday (October 17, 2023declined a petition to overturn the law banning same-sex unions - Anushree /Fadnavis/Reuters
By Sameer Yasir and Alex Travelli

NEW DELHI — India’s Supreme Court on Tuesday (12) rejected a plea to legalize same-sex marriage, a stinging setback for gay people seeking equal rights in this socially conservative country of 1.4 billion people.

A five-member bench of judges ruled unanimously against the petitioners, with the chief justice saying it was up to Parliament to create any laws recognizing same-sex unions.

“The judgment is extremely disappointing,” said Anjali Gopalan, a petitioner in the case and the head of the Naz Foundation, a nonprofit group in New Delhi that works on sexual health issues.

Still, it offered a few glimmers of hope to same-sex marriage proponents, if largely rhetorical in some cases. The judges ruled that transgender people can marry other transgender people, and expanded the definition of discrimination. Among the four opinions they issued in the ruling, some were pointedly sympathetic to the petitioners.

“The right to choose one’s partner and the right to recognition of that union” ought to be observed, even if the union does not constitute marriage, Dhananjaya Yeshwant Chandrachud, India’s chief justice, wrote in his verdict.

Chandrachud’s opinion, however, fell within a two-member minority. And he concurred with all the other justices that the court was the wrong forum for seeking changes in marriage laws, writing that the judiciary “must be careful to not enter into legislative domain.”

The petitioners had argued that the absence of legal safeguards for same-sex couples violates their constitutional right to equal protection before the law. Among the benefits of marriage, they argued, same-sex couples deserve the right to adopt children.

The ruling against them, which comes five years after the court overturned colonial-era laws that criminalized homosexuality, concludes a process that began with a closely watched 10-day hearing that was livestreamed this spring.

India’s conservative government, led by Prime Minister Narendra Modi, had argued that it had a legitimate interest in preserving marriage as a union between a man and a woman, calling it part of the foundation of the state. It said those petitioning for the legalization of same-sex marriage were promoting “urban elitist views” unrepresentative of the broader public.

Adish Aggarwal, the head of the Bar Council of India, said after the ruling Tuesday that the country was simply not ready for such unions.

Members of India’s gay, lesbian, transgender and queer community face widespread discrimination, both legal and illegal, that often turns violent. Discussion of gay sex is still widely regarded as taboo in India, despite the groundbreaking 2018 ruling.

But public opinion on same-sex unions has been changing rapidly. A poll by the Pew Research Centre conducted in 24 countries this year found that 53% of Indians favored legalizing same-sex marriage, up from 15% in 2014.

Around the world, more than 30 countries, mostly in Europe and the Americas, have legalized same-sex marriage, through a mix of political and legal interventions, since the first such unions took place in the Netherlands in 2001. Asia has lagged the West, with only Taiwan having given full approval to same-sex marriage.

Chandrachud said in his judgment that the federal government must ensure certain fundamental protections for gay citizens. For instance, they must be protected from discrimination in access to goods and services, and in general the public must be sensitized to gay rights. The judges unanimously agreed that trans people must be allowed to marry — so long as one member of the couple identifies as a man and the other as a woman.

Responding to the government’s claim that the demand for same-sex marriage answered only to “urban elitist views,” Chandrachud wrote that “queerness is not urban or elite.” It is not just “an English-speaking man with a white-collar man who can claim to be queer,” the justice wrote, “but equally a woman working in an agricultural job in a village.”

Before the judgment, the government had proposed an expert committee that would be responsible for protecting the rights of the LGBTQ+ community. It would, among other things, explore the possibility of considering gay couples to be families when providing food assistance, bank accounts and insurance programs. The judges all concurred with the proposal.

-New York Times

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