Rhea Mogul, Manveena Suri, Vedika Sud, Sania Farooqui and Tanushree Pandey, CNN
Tue, October 17, 2023
India’s top court has declined to legally recognize same-sex unions in a landmark ruling that also emphasized the rights of the LGBTQ community to be free of prejudice and discrimination.
Campaigners had sought to obtain the right to marry under Indian law, giving them access to the same privileges extended to heterosexual couples, but while that was denied they welcomed the court’s recognition of their relationships.
A five-judge constitution bench led by India’s chief justice delivered the much-anticipated verdict on Tuesday, streamed live across the nation and to crowds outside the court who gathered to watch on their cellphones.
During the two-hour ruling, Chief Justice D. Y. Chandrachud said queerness is a “natural phenomenon,” and told the government to ensure the “queer community is not discriminated against because of their gender identity or sexual orientation.”
Justice S. Ravindra Bhat said the right of LGBTQ couples to choose their partners was not contested, and they were entitled to celebrate their commitment to each other “in whichever way they wish within the social realm.”
However, he added: “This does not extend the right to claim any legal entitlement to any legal status for the same union or relationship.”
A member of LGBTQ community reacts on the day of the verdict on same-sex marriage by the Supreme Court in New Delhi, India, October 17, 2023. - Anushree Fadnavis/Reuters
Bhat called for a “high-powered committee” to be formed to evaluate laws that indirectly discriminate against LGBTQ couples by denying them “compensatory benefits or social welfare entitlements” that usually come with being legally married.
“This court cannot within the judicial framework engage in this complex task, the state has to study the impact of these policies and entitlements,” he said.
India’s marriage laws bar millions of LGBTQ couples from accessing legal benefits attached to matrimony in relation to matters including adoption, insurance and inheritance.
More than a dozen petitioners had challenged the law, taking their case to the Supreme Court, which heard their arguments during hearings in April and May.
Susan Dias, one of the petitioners in the case, said she, along with her partner were “disappointed” with the verdict.
“We were hopeful that it would go a little more positively,” she said. “We filed the petition with the hope that we’d leave with some rights. So, definitely disappointment but I don’t think we’ve taken any steps back.”
The ruling government of the Bharatiya Janata Party (BJP) had opposed calls to legalize the unions.
In a submission to the court earlier this year, lawyer for the government, Solicitor Tushar Mehta, called same-sex marriage an “urban” and “elitist” concept – one that is “far removed from the social ethos of the country.”
‘It’s not a loss’
Dozens of LGBTQ activists gathered outside the Supreme Court in the Indian capital New Delhi while the verdict was being read.
Some welcomed the judgment as a progressive move, while others said it wasn’t good enough.
Pranav Grover, 20, said it was a “diplomatic” verdict. “It came in perspective with keeping both parties happy,” he said, adding: “Let’s start to focus on the positive.”
Another bystander, Faraz, said he was a little disappointed.
“When we got to know of the privileges, it is definitely a good thing,” he said.”It is not a loss.”
Amrita awaits the verdict at the Supreme Court of India on October 17, 2023. - Sania Farooqui/CNN
Amrita, who goes by the pronouns she/they, said while it was “very nice to be recognized by the justices,” it was time to “get a move on.”
They added: “This level of indifference was not expected after waiting for so many months.”
Celebrity chef and LGBTQ activist Suvir Saran said while the Supreme Court “didn’t give us the right to marry, it has used the bench as a classroom for educating the legislators and the citizens about homosexuality and the other.”
Amrita watches the verdict on their phone at the Supreme Court of India on October 17, 2023. - Tanushree Pandy/CNN
A complicated history
India has a large LGBTQ community and celebrates gay pride in cities across the country but attitudes toward same-sex relationships have been complicated.
Hindu mythology dating back centuries features men transforming into women and holy texts include third gender characters. But same-sex intercourse was criminalized and marriage rights limited to heterosexual couples under a penal code introduced by India’s British former colonial rulers in 1860.
During nearly a decade in power, Indian leader Narendra Modi and his ruling BJP party have been keen to shake off India’s colonial baggage, renaming streets and cities and championing an India in charge of its own destiny. But Victorian laws governing same-sex marriage are one throwback to the colonial past his party has fought to retain.
An activist displays a tattoo reading "Born this way" in the courtyard of India's Supreme Court in New Delhi on October 17, 2023. - Sajjad Hussain/AFP/Getty Images
Campaigners in India have said the law doesn’t only trap members of the LGBTQ community in the closet, but also invites other forms of discrimination and provides a cover for blackmail and harassment.
After a decade-long battle in 2018, the Supreme Court struck down the colonial-era law that criminalized same-sex intercourse – though it left intact the legislation limiting marriage to heterosexual couples.
Since then, surveys have shown that acceptance of homosexuality has grown.
According to a Pew survey published in June, 53% people believed homosexuality should be accepted – a 38% increase from 2014.
Yet, despite this larger embrace, conservatives within India have been opposed to same-sex unions.
Top leaders from the country’s various religious organizations came together earlier this year to say marriage “is for procreation, not recreation.”
India's Supreme Court refuses to legalize same-sex marriage, saying it's up to Parliament
KRUTIKA PATHI
Updated Tue, October 17, 2023
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India Same Sex Marriage
LGBTQ community supporters and members hold each other hand as they watch the Supreme Court verdict on petitions that seek the legalization of same-sex marriage, in Mumbai, India, Tuesday, Oct. 17, 2023. According to a Pew survey, acceptance of homosexuality in India increased by 22 percentage points to 37% between 2013 and 2019.
Updated Tue, October 17, 2023
2 / 14
India Same Sex Marriage
LGBTQ community supporters and members hold each other hand as they watch the Supreme Court verdict on petitions that seek the legalization of same-sex marriage, in Mumbai, India, Tuesday, Oct. 17, 2023. According to a Pew survey, acceptance of homosexuality in India increased by 22 percentage points to 37% between 2013 and 2019.
(AP Photo/Rafiq Maqbool)
NEW DELHI (AP) — India’s top court on Tuesday refused to legalize same-sex marriages, passing the responsibility back to Parliament in a ruling that disappointed campaigners for LGBTQ+ rights in the world's most populous country.
Chief Justice DY Chandrachud also urged the government to uphold the rights of the queer community and end discrimination against them.
Earlier this year, the five-judge bench heard 21 petitions that sought to legalize same-sex marriage.
Chandrachud said there were degrees of agreement and disagreement among the justices “on how far we have to go” on same-sex marriages, but the judges unanimously agreed that the court can't grant LGBTQ+ people the right to marry because that is a legislative function.
“This court can’t make law. It can only interpret it and give effect to it,” the chief justice said, reiterating that it was up to Parliament to decide whether it could expand marriage laws to include queer unions.
One of the petitioners, Mario da Penha, said it was “a day to be disappointed, but not to lose hope.”
“There's been tremendous work that has gone into these petitions, and many hopes and dreams of the queer community attached to them — to lead lives that most other Indians take for granted. The fact that the dream could not come to fruition today is a disappointment for all of us,” he said.
He added that it wasn't yet clear if the court had set a mandate or timeline for Parliament to act.
“Without that mandate, there is no pressure on Parliament to enact any legislation," he said.
“There are queer couples today that are already families and in relationships, and are pillars of society. That they are not afforded the dignity and rights that they are due is deeply disappointing,” said Karuna Nundy, one of the lawyers representing the petitioners.
Legal rights for LGBTQ+ people in India have been expanding over the past decade, mostly as a result of the Supreme Court’s intervention.
In 2018, the top court struck down a colonial-era law that had made gay sex punishable by up to 10 years in prison and expanded constitutional rights for the gay community.
The decision was seen as a historic victory for LGBTQ+ rights, with one judge saying it would “pave the way for a better future."
Despite this progress, Prime Minister Narendra Modi’s government resisted the legal recognition of same-sex marriage and rejected several petitions in favor.
During the hearings, the government argued that a marriage is only between a biological male and a biological woman, adding that same-sex marriages went against religious values and that the petitions reflected only “urban elitist views.” Religious groups too had opposed same-sex unions, saying they went against Indian culture.
Adish Aggarwala, the president of the Supreme Court bar association, said the court had done the right thing by recognizing that this was a job for Parliament, an argument the government also made during the hearings.
Lawyers for the petitioners argued that marriage is between two people, not just a man and woman. They said concepts of marriage have gradually changed with time and laws should acknowledge that.
By not recognizing such unions, the government was depriving same-sex couples of their right to equality enshrined in the constitution and rights enjoyed by married heterosexual couples, from adoption and medical insurance to pensions and inheritance, they argued.
“This court needs to push society to acknowledge same-sex marriage,” one of the lawyers said.
Petitioners were hopeful that the Supreme Court could challenge the government’s position.
Some of the justices urged the state to make sure queer couples don’t face harassment or discrimination in accessing basic needs, like opening a joint bank account. They called for steps to raise awareness among the public about queer identity, establish hotlines and safe houses available for those in the queer community who are facing violence.
The chief justice also rejected the government's assertion that being queer was an “urban” concept, saying it's not just “an English-speaking man” or a “white-collar man” who can claim to be queer, but equally, “a woman working in an agricultural job in a village.”
But overall, all five judges stopped short of granting legal recognition to same-sex unions.
Instead, the court accepted the government's offer to set up a special panel that will explore granting social and legal benefits to same-sex couples.
Homosexuality has long carried a stigma in India’s traditional society, even though there has been a shift in attitudes toward same-sex couples in recent years. India now has openly gay celebrities and some high-profile Bollywood films have dealt with gay issues. According to a Pew survey, acceptance of homosexuality in India increased by 22 percentage points to 37% between 2013 and 2019.
But same-sex couples often face harassment in many Indian communities, whether Hindu, Muslim or Christian.
India is estimated to have at least 2.5 million LGBTQ+ people, according to government figures from 2012. However, gay rights activists and global estimates believe they number at least 10% of the population, or more than 135 million.
In May, Taiwan became the first jurisdiction in Asia to recognize same-sex marriages. In July, Nepal's Supreme Court issued an interim order enabling the registration of same-sex marriages for the first time. It's still not clear when the court would make its final decision on the case.
India's Supreme Court Has Declined to Legalize Same-Sex Marriage
Abby Monteil
Tue, October 17, 2023
Dipa Chakraborty/Eyepix Group/Future Publishing via Getty Images
India’s Supreme Court declined to legalize same-sex marriages on Tuesday (October 17), dashing the hopes of the country’s millions of LGBTQ+ people.
In the ruling, Chief Justice DY Chanrachud said that the five-judge bench could not make same-sex marriage legal because “this court can’t make law. It can only interpret it and give effect to it,” The chief justice explained that it was up to Parliament to grant the legal right of marriage to same-sex unions. According to NBC, Chief Justice Chanrachud urged the government to end discrimination against queer Indians.
In April and May, India’s Supreme Court heard 21 petitions from LGBTQ+ activists and couples, who pointed out that without legal recognition of their relationships, they didn’t have access to the rights attached to marriage. Indian common property and inheritance laws don’t apply to LGBTQ+ couples, who are also barred from having children with the help of a surrogate, according to the Los Angeles Times. Although individuals can apply to adopt children, LGBTQ+ couples cannot adopt as a couple.
The petitioners had suggested that the court replace the words “man” and “woman” with “spouse” in the country’s Special Marriage Act, which permits marriage between people from different religions, countries, and castes.
Instead of legalizing same-sex marriage, the BBC reports that the Supreme Court judges accepted a proposal from Solicitor General Tushar Mehta that the government set up a committee to consider granting LGBTQ+ couples the rights and privileges afforded to their straight counterparts.
Surveys show that acceptance of the LGBTQ+ community has grown within India. According to a Pew Research Center survey published in June, 53% of citizens believe that homosexuality should be accepted, marking a 38% increase from 2014. Activists have estimated that queer and trans people could make up at least 10% of the population, or over 135 million people, per the Indian Express.
During petitions in the case earlier this year, the current ruling Hindu nationalist Bharatiya Janata party government opposed the legalization of same-sex marriage, stating that these unions were “not comparable with the Indian family unit concept of a husband, a wife, and children,” and describing the arguments in the petitions as “urban elitist views.”
Over the past decade, legal rights for queer and trans Indians have made significant strides forward. In 2014, India’s Supreme Court recognized the country’s trans community as a “third gender.” This afforded trans people legal protections under Article 15 of India’s Constitution, which states that no state can discriminate against citizens on the basis of race, sex, caste, or religion.
In 2018, the Supreme Court struck down a law criminalizing gay sex, a remnant of a penal code introduced by British colonizers in 1860. However, that penal code also limited marriage rights to heterosexual couples.
Needless to say, this isn’t the end of LGBTQ+ citizens’ fight for equality. One of the petitioners, Maria da Penha, told the Associated Press that today is “a day to be disappointed, but not to lose hope.”
“There’s been tremendous work that has gone into these petitions, and many hopes and dreams of the queer community attached to them — to lead lives that most other Indians take for granted,” he said. “The fact that the dream could not come to fruition today is a disappointment for all of us.”
Get the best of what’s queer. Sign up for Them’s weekly newsletter here.
Originally Appeared on them.
India’s Top Court Rejects Bid to Legalize Same-Sex Marriage
NEW DELHI (AP) — India’s top court on Tuesday refused to legalize same-sex marriages, passing the responsibility back to Parliament in a ruling that disappointed campaigners for LGBTQ+ rights in the world's most populous country.
Chief Justice DY Chandrachud also urged the government to uphold the rights of the queer community and end discrimination against them.
Earlier this year, the five-judge bench heard 21 petitions that sought to legalize same-sex marriage.
Chandrachud said there were degrees of agreement and disagreement among the justices “on how far we have to go” on same-sex marriages, but the judges unanimously agreed that the court can't grant LGBTQ+ people the right to marry because that is a legislative function.
“This court can’t make law. It can only interpret it and give effect to it,” the chief justice said, reiterating that it was up to Parliament to decide whether it could expand marriage laws to include queer unions.
One of the petitioners, Mario da Penha, said it was “a day to be disappointed, but not to lose hope.”
“There's been tremendous work that has gone into these petitions, and many hopes and dreams of the queer community attached to them — to lead lives that most other Indians take for granted. The fact that the dream could not come to fruition today is a disappointment for all of us,” he said.
He added that it wasn't yet clear if the court had set a mandate or timeline for Parliament to act.
“Without that mandate, there is no pressure on Parliament to enact any legislation," he said.
“There are queer couples today that are already families and in relationships, and are pillars of society. That they are not afforded the dignity and rights that they are due is deeply disappointing,” said Karuna Nundy, one of the lawyers representing the petitioners.
Legal rights for LGBTQ+ people in India have been expanding over the past decade, mostly as a result of the Supreme Court’s intervention.
In 2018, the top court struck down a colonial-era law that had made gay sex punishable by up to 10 years in prison and expanded constitutional rights for the gay community.
The decision was seen as a historic victory for LGBTQ+ rights, with one judge saying it would “pave the way for a better future."
Despite this progress, Prime Minister Narendra Modi’s government resisted the legal recognition of same-sex marriage and rejected several petitions in favor.
During the hearings, the government argued that a marriage is only between a biological male and a biological woman, adding that same-sex marriages went against religious values and that the petitions reflected only “urban elitist views.” Religious groups too had opposed same-sex unions, saying they went against Indian culture.
Adish Aggarwala, the president of the Supreme Court bar association, said the court had done the right thing by recognizing that this was a job for Parliament, an argument the government also made during the hearings.
Lawyers for the petitioners argued that marriage is between two people, not just a man and woman. They said concepts of marriage have gradually changed with time and laws should acknowledge that.
By not recognizing such unions, the government was depriving same-sex couples of their right to equality enshrined in the constitution and rights enjoyed by married heterosexual couples, from adoption and medical insurance to pensions and inheritance, they argued.
“This court needs to push society to acknowledge same-sex marriage,” one of the lawyers said.
Petitioners were hopeful that the Supreme Court could challenge the government’s position.
Some of the justices urged the state to make sure queer couples don’t face harassment or discrimination in accessing basic needs, like opening a joint bank account. They called for steps to raise awareness among the public about queer identity, establish hotlines and safe houses available for those in the queer community who are facing violence.
The chief justice also rejected the government's assertion that being queer was an “urban” concept, saying it's not just “an English-speaking man” or a “white-collar man” who can claim to be queer, but equally, “a woman working in an agricultural job in a village.”
But overall, all five judges stopped short of granting legal recognition to same-sex unions.
Instead, the court accepted the government's offer to set up a special panel that will explore granting social and legal benefits to same-sex couples.
Homosexuality has long carried a stigma in India’s traditional society, even though there has been a shift in attitudes toward same-sex couples in recent years. India now has openly gay celebrities and some high-profile Bollywood films have dealt with gay issues. According to a Pew survey, acceptance of homosexuality in India increased by 22 percentage points to 37% between 2013 and 2019.
But same-sex couples often face harassment in many Indian communities, whether Hindu, Muslim or Christian.
India is estimated to have at least 2.5 million LGBTQ+ people, according to government figures from 2012. However, gay rights activists and global estimates believe they number at least 10% of the population, or more than 135 million.
In May, Taiwan became the first jurisdiction in Asia to recognize same-sex marriages. In July, Nepal's Supreme Court issued an interim order enabling the registration of same-sex marriages for the first time. It's still not clear when the court would make its final decision on the case.
India's Supreme Court Has Declined to Legalize Same-Sex Marriage
Abby Monteil
Tue, October 17, 2023
Dipa Chakraborty/Eyepix Group/Future Publishing via Getty Images
India’s Supreme Court declined to legalize same-sex marriages on Tuesday (October 17), dashing the hopes of the country’s millions of LGBTQ+ people.
In the ruling, Chief Justice DY Chanrachud said that the five-judge bench could not make same-sex marriage legal because “this court can’t make law. It can only interpret it and give effect to it,” The chief justice explained that it was up to Parliament to grant the legal right of marriage to same-sex unions. According to NBC, Chief Justice Chanrachud urged the government to end discrimination against queer Indians.
In April and May, India’s Supreme Court heard 21 petitions from LGBTQ+ activists and couples, who pointed out that without legal recognition of their relationships, they didn’t have access to the rights attached to marriage. Indian common property and inheritance laws don’t apply to LGBTQ+ couples, who are also barred from having children with the help of a surrogate, according to the Los Angeles Times. Although individuals can apply to adopt children, LGBTQ+ couples cannot adopt as a couple.
The petitioners had suggested that the court replace the words “man” and “woman” with “spouse” in the country’s Special Marriage Act, which permits marriage between people from different religions, countries, and castes.
Instead of legalizing same-sex marriage, the BBC reports that the Supreme Court judges accepted a proposal from Solicitor General Tushar Mehta that the government set up a committee to consider granting LGBTQ+ couples the rights and privileges afforded to their straight counterparts.
Surveys show that acceptance of the LGBTQ+ community has grown within India. According to a Pew Research Center survey published in June, 53% of citizens believe that homosexuality should be accepted, marking a 38% increase from 2014. Activists have estimated that queer and trans people could make up at least 10% of the population, or over 135 million people, per the Indian Express.
During petitions in the case earlier this year, the current ruling Hindu nationalist Bharatiya Janata party government opposed the legalization of same-sex marriage, stating that these unions were “not comparable with the Indian family unit concept of a husband, a wife, and children,” and describing the arguments in the petitions as “urban elitist views.”
Over the past decade, legal rights for queer and trans Indians have made significant strides forward. In 2014, India’s Supreme Court recognized the country’s trans community as a “third gender.” This afforded trans people legal protections under Article 15 of India’s Constitution, which states that no state can discriminate against citizens on the basis of race, sex, caste, or religion.
In 2018, the Supreme Court struck down a law criminalizing gay sex, a remnant of a penal code introduced by British colonizers in 1860. However, that penal code also limited marriage rights to heterosexual couples.
Needless to say, this isn’t the end of LGBTQ+ citizens’ fight for equality. One of the petitioners, Maria da Penha, told the Associated Press that today is “a day to be disappointed, but not to lose hope.”
“There’s been tremendous work that has gone into these petitions, and many hopes and dreams of the queer community attached to them — to lead lives that most other Indians take for granted,” he said. “The fact that the dream could not come to fruition today is a disappointment for all of us.”
Get the best of what’s queer. Sign up for Them’s weekly newsletter here.
Originally Appeared on them.
India’s Top Court Rejects Bid to Legalize Same-Sex Marriage
Shruti Mahajan
Tue, October 17, 2023
(Bloomberg) -- Sign up for the India Edition newsletter by Menaka Doshi – an insider's guide to the emerging economic powerhouse, and the billionaires and businesses behind its rise, delivered weekly.
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.
India's Supreme Court rejects legalization of gay marriage
Ryan General
Tue, October 17, 2023
[Source]
India's Supreme Court has declined to grant legal recognition to same-sex marriages in the country, stating that the matter should be decided by the parliament.
A divided verdict: The five-judge bench of the Supreme Court, led by Chief Justice D. Y. Chandrachud, handed the divided verdict on Oct 17. While two judges supported same-sex civil unions, the majority verdict ruled against legalizing same-sex marriages. The decision comes five years after the decriminalization of homosexuality in India in 2018.
In the ruling, Chief Justice Chandrachud emphasized that LGBTQ+ individuals should have the right to choose their partners and cohabit without facing discrimination. He instructed the government to form a high-level committee to examine the concerns and rights of same-sex couples, highlighting that queerness is not confined to urban elites.
A disappointed community: Campaigners and petitioners, including dozens of LGBTQ+ couples and activists, expressed their disappointment at the verdict. Ankita Khanna, one of the petitioners, described it as a "deeply divided judgment," according to The Guardian. Emphasizing the resilience of the queer community, Khanna stated that they would continue to move forward in solidarity.
More from NextShark: S. Korean politician in hot water for resurfaced fanfic featuring K-pop star IU
"I didn't expect it would be a very good judgment but it feels much worse than expected," Uday Raj Anand, a petitioner in the case, told Reuters. "What I had thought was that at least the court would make its stand clear, say that it is not in a position to make or change law but they would certainly direct the government to do it."
A complicated history: India's LGBTQ+ community, which celebrates gay pride and has a deep historical connection to gender diversity, has long faced challenges due to colonial-era laws that criminalized same-sex relations. While the Supreme Court struck down these laws in 2018, attitudes towards LGBTQ+ rights remain complex, with conservative viewpoints persisting amid growing public acceptance.
A call for legislative action: The ruling Bharatiya Janata Party government argued through its lawyer Solicitor General Tushar Mehta that same-sex marriages were an “urban” and “elitist” concept and not in line with the traditional Indian family unit concept, according to CNN.
More from NextShark: Malaysian Producer Sparks Outrage for Using Blackface to 'Glorify' Dark Skin
The government maintained that instead of the courts, the issue of same-sex unions in India should be decided by parliament, not the courts. In effect, this decision has now placed the responsibility to address the matter to the legislature.
India’s top court refuses to legalise same-sex marriage
THE TELEGRAPH
Our Foreign Staff
Tue, October 17, 2023
Supporters of same-sex marriage were left disappointed when watching a live streaming of the verdict at the Humsafar Trust office in Mumbai - Shutterstock/Divyakant Solanki
India’s supreme court has declined to legalise same-sex marriage, passing the decision back to parliament in a blow to LGBTQ campaigners across the country.
Tuesday’s order by a five-judge bench in the world’s most populous country came five years after the top court scrapped a colonial-era ban on gay sex.
“This court can’t make law. It can only interpret it and give effect to it,” chief justice DY Chandrachud said, reiterating that it was up to parliament to decide whether it could expand marriage laws to include same-sex unions.
There was no immediate response from the government to the court ruling but prime minister Narendra Modi’s nationalist Bharatiya Janata Party (BJP) administration had opposed petitions to the court on the issue.
It had argued that same-sex marriage is not “comparable with the Indian family unit concept of a husband, a wife and children” and that parliament was the right forum to rule on the contentious issue.
India would be only the second country in Asia to recognise same-sex marriage were it do so, after Taiwan took the step in 2019.
Justice Chandrachud said there was a degree of “agreement and a degree of disagreement on how far we have to go” on same-sex marriage, adding that four of the five judges had written separate judgements, reflecting the complexity of the case.
But he rejected the government argument that being gay is “urban or elite”.
India would have been only the second country in Asia to legalise same-sex marriage - Reuters/Anushree Fadnavis
Karuna Nundy, one of the lawyers representing the petitioners, said: “There are queer couples today that are already families and in relationships, and are pillars of society.
“That they are not afforded the dignity and rights that they are due is deeply disappointing.”
Legal rights for LGBTQ+ people in India have been expanding over the past decade, mostly as a result of the Supreme Court’s intervention.
In 2018, the top court struck down a colonial-era law that had made gay sex punishable by up to 10 years in prison and expanded constitutional rights for the gay community.
The decision was seen as a historic victory for LGBTQ+ rights, with one judge saying it would “pave the way for a better future.”
Despite this progress, however, Mr Modi’s government has repeatedly resisted the legal recognition of same-sex marriage. Religious groups have also opposed same-sex unions, arguing they go against Indian culture.
In Tuesday’s verdict, chief justice Chandrachud and Sanjay Kishan Kaul, the second most-senior judge on the bench, said that it was the government’s duty to provide LGBTQ+ people “a bouquet of rights and privileges” that are available to heterosexual couples. But Justice Bhat disagreed, saying the “state cannot be obligated” to do that.
The chief justice also rejected the government’s assertion that being homosexual was an “urban” concept, saying it’s not just “an English-speaking man” or a “white-collar man” who can claim to be gay, but equally, “a woman working in an agricultural job in a village.”
Shift in attitudes towards same-sex marriage
But overall, all five judges stopped short of granting legal recognition to same-sex unions. Instead, the court accepted the government’s offer to set up a special panel that will explore granting social and legal benefits to same-sex couples, such as joint accounts in banks, from which they are currently barred.
Homosexuality has long carried a stigma in Indian society, even though there has been a shift in attitudes toward same-sex couples over recent years.
India now has openly gay celebrities and some high-profile Bollywood films have dealt with gay issues.
According to a Pew survey, acceptance of homosexuality in India increased by 22 percentage points to 37 per cent between 2013 and 2019.
But same-sex couples often face harassment in many Indian communities, whether Hindu, Muslim or Christian.
India is estimated to have at least 2.5 million LGBTQ+ people, according to government figures from 2012. However, gay rights activists and global estimates believe they number at least 10 per cent of the population, or more than 135 million.
India’s Supreme Court refuses to allow same-sex marriage in landmark verdict
Our Foreign Staff
Tue, October 17, 2023
Supporters of same-sex marriage were left disappointed when watching a live streaming of the verdict at the Humsafar Trust office in Mumbai - Shutterstock/Divyakant Solanki
India’s supreme court has declined to legalise same-sex marriage, passing the decision back to parliament in a blow to LGBTQ campaigners across the country.
Tuesday’s order by a five-judge bench in the world’s most populous country came five years after the top court scrapped a colonial-era ban on gay sex.
“This court can’t make law. It can only interpret it and give effect to it,” chief justice DY Chandrachud said, reiterating that it was up to parliament to decide whether it could expand marriage laws to include same-sex unions.
There was no immediate response from the government to the court ruling but prime minister Narendra Modi’s nationalist Bharatiya Janata Party (BJP) administration had opposed petitions to the court on the issue.
It had argued that same-sex marriage is not “comparable with the Indian family unit concept of a husband, a wife and children” and that parliament was the right forum to rule on the contentious issue.
India would be only the second country in Asia to recognise same-sex marriage were it do so, after Taiwan took the step in 2019.
Justice Chandrachud said there was a degree of “agreement and a degree of disagreement on how far we have to go” on same-sex marriage, adding that four of the five judges had written separate judgements, reflecting the complexity of the case.
But he rejected the government argument that being gay is “urban or elite”.
India would have been only the second country in Asia to legalise same-sex marriage - Reuters/Anushree Fadnavis
Karuna Nundy, one of the lawyers representing the petitioners, said: “There are queer couples today that are already families and in relationships, and are pillars of society.
“That they are not afforded the dignity and rights that they are due is deeply disappointing.”
Legal rights for LGBTQ+ people in India have been expanding over the past decade, mostly as a result of the Supreme Court’s intervention.
In 2018, the top court struck down a colonial-era law that had made gay sex punishable by up to 10 years in prison and expanded constitutional rights for the gay community.
The decision was seen as a historic victory for LGBTQ+ rights, with one judge saying it would “pave the way for a better future.”
Despite this progress, however, Mr Modi’s government has repeatedly resisted the legal recognition of same-sex marriage. Religious groups have also opposed same-sex unions, arguing they go against Indian culture.
In Tuesday’s verdict, chief justice Chandrachud and Sanjay Kishan Kaul, the second most-senior judge on the bench, said that it was the government’s duty to provide LGBTQ+ people “a bouquet of rights and privileges” that are available to heterosexual couples. But Justice Bhat disagreed, saying the “state cannot be obligated” to do that.
The chief justice also rejected the government’s assertion that being homosexual was an “urban” concept, saying it’s not just “an English-speaking man” or a “white-collar man” who can claim to be gay, but equally, “a woman working in an agricultural job in a village.”
Shift in attitudes towards same-sex marriage
But overall, all five judges stopped short of granting legal recognition to same-sex unions. Instead, the court accepted the government’s offer to set up a special panel that will explore granting social and legal benefits to same-sex couples, such as joint accounts in banks, from which they are currently barred.
Homosexuality has long carried a stigma in Indian society, even though there has been a shift in attitudes toward same-sex couples over recent years.
India now has openly gay celebrities and some high-profile Bollywood films have dealt with gay issues.
According to a Pew survey, acceptance of homosexuality in India increased by 22 percentage points to 37 per cent between 2013 and 2019.
But same-sex couples often face harassment in many Indian communities, whether Hindu, Muslim or Christian.
India is estimated to have at least 2.5 million LGBTQ+ people, according to government figures from 2012. However, gay rights activists and global estimates believe they number at least 10 per cent of the population, or more than 135 million.
India’s Supreme Court refuses to allow same-sex marriage in landmark verdict
Namita Singh
Tue, October 17, 2023
India’s Supreme Court refuses to allow same-sex marriage in landmark verdict
India’s top court has rejected a landmark petition seeking the recognition of same-sex marriage in the country, a blow for the queer community that denies tens of millions of LGBT+ couples the right to marry their partners.
In a lengthy judgement, the Supreme Court of India urged the government to create legal recognition for same-sex couples so that they do not face discrimination but stopped short of including such couples within the existing legal framework of marriage.
The case involved 21 separate petitions from members of the LGBT+ community who argued that not being able to marry violated their constitutional rights, making them “second-class citizens”.
The government contested the petitions, which came just five years after India decriminalised gay sex, arguing that marriage is exclusively an institution between a man and a woman and that those seeking marriage equality represented an “urban elitist view for the purpose of social acceptance”.
The case was overseen by the country’s most senior judge, chief justice Dhananjaya Yeshwant Chandrachud, as well as four other Supreme Court justices. It held hearings up until 11 May this year and had been deliberating its verdict for more than five months since then.
Giving his judgment, Mr Justice Chandrachud said marriages were clearly defined as being between a man and a woman in India’s Special Marriages Act (SMA), under which weddings outside of the scope of traditional religious ceremonies such as interfaith and intercaste marriage are registered. The petitioners had asked that the SMA be interpreted to also cover same-sex marriage.
Mr Justice Chandrachud said the role of the court was not to make laws but only to interpret them, adding that reading words into the SMA would “be redrafting the law”.
Despite Mr Justice Chandrachud speaking in favour of allowing same-sex and unmarried couples to adopt children, the court also ruled by three judges to two against expanding the definition of adoption laws to permit this.
However, he also argued that the “failure of the state to recognise the bouquet of rights flowing from a queer relationship amounts to discrimination”.
The chief justice rejected the government’s submission that the push for same-sex marriage was only an “urban and elitist” concept.
The judges differed over whether the court should recognise the right to form same-sex civil unions (AP Photo/Rafiq Maqbool)
“Homosexuality or queerness is not limited to urban and affluent spaces,” the chief justice said. “To imagine that queer people only exist in urban centres is to erase them [where they exist elsewhere]. People may be queer regardless of whether they are from villages or small towns and regardless of caste or economic location.”
The chief justice concluded that “there is no universal conception of the institution of marriage and that it lies within the domain of parliament and state legislatures to enact laws recognising and regulating queer marriage”.
“This court cannot either strike down the constitutional validity of the Special Marriage Act or read words into the Special Marriage Act because of its institutional limitations.
“The court, in the exercise of the power of judicial review, must steer clear of matters, particularly those impinging on policy, which falls in the legislative domain,” a view also concurred to by Justice Sanjay Kishan Kaul and Justice Shripathi Ravindra Bhat in their own judgments.
An activist displays a tattoo reading ‘Born this way’ in the courtyard of India’s Supreme Court in New Delhi on 17 October 2023 (Sajjad HUSSAIN/AFP via Getty)
The judges differed over whether the court should recognise the right to form same-sex civil unions. While Mr Justice Chandrachud and Mr Justice Kaul ruled in favour, Mr Justice Bhat, Justice Hima Kohli and Justice Pamidighantam Sri Narasimha emphasised that there was no unqualified right to marriage under the Indian constitution.
Mr Justice Bhat said that though people have the right to choose their partners, “If it is agreed that marriage is a social institution, does it mean that any section of the society which wishes for the creation of a like institution, can seek relief by court?”
The court accepted the government’s proposal to set up an expert panel looking into the package of rights and privileges that can be extended to same-sex couples, short of permitting them to marry.
India’s government had earlier indicated its willingness to extend some social benefits to same-sex couples, though what form the recognition of such couples would take remains unclear.
The committee, headed by the cabinet secretary, will look into the “administrative steps” that the government can consider for ensuring social security and other welfare benefits, solicitor general Tushar Mehta informed the court in May.
Uday Raj Anand, a Delhi-based businessman and one of the petitioners in the case, expressed his disappointment with the verdict, saying he had waited anxiously in the court since 9am in the morning and had been “cautiously optimistic” when the judges finally emerged just before 11am. Describing his mood after hearing the judgements, he told The Independent: “Unfortunately, at the moment, it is not really celebratory.
“I was looking for some kind of concrete relief but unfortunately, that’s not really come.”
Maps showing criminalisation of same sex relations around the world (International Lesbian, Gay, Bisexual, Trans and Intersex Association)
Last updated in March 2023, this map shows the countries that recognise marriage equality. Nepal’s top court has since issued an order de facto legalising same-sex marriage (International Lesbian, Gay, Bisexual, Trans and Intersex Association)
Another petitioner, Mario da Penha, said it was “a day to be disappointed but not to lose hope”.
“There’s been tremendous work that has gone into these petitions, and many hopes and dreams of the queer community attached to them – to lead lives that most other Indians take for granted.
“The fact that the dream could not come to fruition today is a disappointment for all of us,” he said.
He expressed concern that it was not yet clear from the spoken judgements whether the court had set a mandate or timeline for parliament to act. “Without that mandate, there is no pressure on parliament to enact any legislation,” he said.
Karuna Nundy, one of the lawyers representing the petitioners, said: “There are queer couples today that are already families and in relationships, and are pillars of society. That they are not afforded the dignity and rights that they are due is deeply disappointing.”
An activist holds a rainbow flag in the courtyard of India’s Supreme Court in New Delhi on 17 October 2023 (AFP via Getty)
Mr Anand, who has two children with his partner Parth Phiroze Mehrotra, shares his anguish at not being seen as a family unit. Despite raising them as a couple, on paper, the children have only one parent, he says, as he raises concerns about not being able to share joint custody of his children with his partner.
“I mean, if you want to travel abroad, one of the fathers (who is not named as a guardian on paper) can’t really just take a minor child and travel abroad with him,” he explains.
“If one father who is not on the legal papers wants to transfer money to the child for his school or for his college education or while he’s living in another town wants to transfer money to him, he can’t do that without attracting income tax questions.
“The school can declare only one parent, despite having two. It is bad psychologically for the child in every way.”
While, legal rights for the queer community in India have been expanding over the past decade, mostly as a result of the Supreme Court’s intervention, the latest ruling leaves Taiwan and Nepal as the only Asian jurisdictions among 34 nations that permit same-sex marriage.
In 2018, India’s top court struck down a colonial-era law that had made gay sex punishable by up to 10 years in prison and expanded constitutional rights for the gay community. The decision was seen as a historic victory for LGBT+ rights, with one judge saying it would “pave the way for a better future”.
LGTB+ activist Shivangi Sharma speaks with the media at the courtyard of India’s Supreme Court (Sajjad HUSSAIN / AFP)
Expressing her deep anguish at the judgment from the apex court, Shrushti Mane, a queer woman residing in Mumbai, said it feels “like a betrayal of the most fundamental principles of fairness and acceptance”.
“I’m quite disappointed by the judges’ stance again,” she tells The Independent. “Despite a hearing that ostensibly addressed discrimination and social acceptance, the judges chose to evade delivering a direct judgment in our favour.
“The judges surely didn’t pass a single judgment in our name, at least not directly. The hearing, instead of being a beacon of hope, felt like a rehearsed script where existing rights were merely sugarcoated without genuine advocacy for LGBTQIA+ rights.
“It’s as though we’ve been given a foot in the door, but the path to LGBTQ+ rights remains obstructed. I am reminded again that hope is more the consequence of action than its cause.”
Same-sex marriage: India awaits historic Supreme Court verdict
Geeta Pandey - BBC News, Delhi
Mon, October 16, 2023
The top court's judgement is being keenly awaited
On Tuesday, India's Supreme Court is set to give a ruling on petitions seeking to legalise same-sex marriage.
The petitioners say not being able to marry violates their constitutional rights and makes them "second-class citizens".
The government and religious leaders have strongly opposed same-sex unions, saying they are against Indian culture.
If the court okays marriage equality, it will give India's tens of millions of LGBTQ+ people the right to marry.
It would also set off momentous changes in Indian society as a lot of other laws, such as those governing adoption, divorce and inheritance, will have to be reimagined.
A five-judge constitution bench - which is set up to consider important questions of law - heard the case in April and May. Chief Justice DY Chandrachud, who is heading the bench, called it "a matter of seminal importance" and the deliberations were "livestreamed in public interest". The court reserved its order on 12 May.
Justice Chandrachud had said they would not interfere with religious personal laws but look at whether a special law - that governs inter-caste and inter-faith marriages - could be amended to include LGBTQ+ people.
The debate is important in a country which is home to an estimated tens of millions of LGBTQ+ people. In 2012, the Indian government put their population at 2.5 million, but calculations using global estimates believe it to be at least 10% of the entire population - or more than 135 million.
Who are the petitioners and what do they want?
The court heard 21 petitions filed by same-sex couples - including some who are raising children together - LGBTQ+activists and organisations.
Lawyers for the petitioners have argued that marriage is a union of two people, not just a man and woman. They say that laws should be changed to reflect changing concepts of marriage over time and that same-sex couples also desire the respectability of marriage.
The Indian constitution, the petitioners have repeatedly insisted in court, gives all citizens the right to marry a person of their choice and prohibits discrimination on the basis of sexual orientation.
Same-sex couples say not being able to marry means they can't hold joint bank accounts or co-own a house
They point out that not being able to marry means they can't hold joint bank accounts, co-own a house or adopt children together.
During the hearing, the judges appeared sympathetic to the concerns of same-sex couples and asked the government what it intended to do to address them.
Lively debate during historic India same-sex marriage hearing
The lesbian activist seeking marriage equality in India
Click here to watch the BBC's film on LGBTQ allies
What did the government say?
The government began by questioning the court's right to hear the matter at all, saying it was an issue that only parliament could decide.
Solicitor General Tushar Mehta, who represented the government, urged the top court to reject the petitions, saying that a marriage could take place only between a man and a woman who were heterosexual.
The authorities also criticised the same-sex petitioners, saying that they "merely reflect urban elitist views".
In a rare show of unity, leaders from all of India's main religions also opposed same-sex unions, with some insisting that marriage "is for procreation, not recreation".
Disregarding the opposition from the government and religious leaders, the judges decided to take on the case.
They said they would not wade into religious personal laws but look at whether the Special Marriage Act (SMA) of 1954 could be tweaked to include LGBTQ+ people.
What is the Special Marriage Act?
In India, an overwhelming majority of marriages are held under religious personal laws such as the Muslim Marriage Act and the Hindu Marriage Act.
But they recognise weddings only between couples from their religion or caste. So, earlier if a Hindu and a Muslim wanted to marry, one of them had to convert to the other's religion.
"This was a very problematic concept," says lawyer Akshat Bajpai, "as it defeated the concept of personal liberty - that includes the right to practise your religion - guaranteed by the Indian constitution."
So, after independence, the government decided to bring in a legal mechanism for inter-faith or inter-caste marriages.
"The Special Marriage Act 1954, introduced by an act of parliament, de-hyphenated marriage with religion. It underlined that one wouldn't have to abandon their religion in order to marry," Mr Bajpai says. "This was a great step for personal liberty."
Attitudes to sex and sexuality remain largely conservative in India
In the court, the petitioners argued that replacing "man" and "woman" with "spouse" in the Act could do the trick and give them marriage equality.
But as the hearings progressed, it became clear that tweaking this one law may not be enough as there are dozens of laws that govern divorce, adoption, succession, maintenance and other related issues which mostly come under the ambit of religious personal laws.
"It's an unprecedented situation. It requires the highest levels of statesmanship to craft this judgement," says lawyer Akshat Bajpai.
What are the other options before the court?
It's hard to second-guess what the judges would say in court, but one thing that is widely expected is that they would grant same-sex couples certain social and legal rights, such as allowing them to open joint bank accounts, nominate each other in their insurance policies and co-own property.
Solicitor General Mehta has also said in court that the government would be willing to look at giving same-sex couples these rights.
During the hearing, some of the judges spoke of "incremental changes", saying sometimes they worked better for issues that concerned the wider society.
With the government vehemently opposing the petitions, Mr Bajpai says "the judges have to walk a tightrope" in a country where "marriage and family are at the heart of any religion".
The top court's judgement is being keenly awaited in a country which has around 140 million LGBTQ+ people according to globally accepted estimates.
Recent surveys have shown that acceptance of homosexuality has grown, especially since September 2018 when the Supreme Court decriminalised gay sex.
A Pew survey in 2020 had 37% people saying homosexuality should be accepted - an increase of 22% from 15% in 2014, the first time the question was asked in the country. And the latest Pew survey in June had 53% of Indian adults saying same-sex marriage should be legal, while only 43% opposed it.
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But despite the change, attitudes to sex and sexuality remain largely conservative and activists say the community continues to face stigma and discrimination.
During the hearing, Mukul Rohatgi, one of the lawyers representing the petitioners, said society sometimes needed a nudge to accept LGBTQ+ people as equals under the constitution and if the top court legalised same-sex marriage, it would drive acceptance of the group.
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