Topline
India’s Supreme Court refused to legalize same-sex marriage on Tuesday, saying Parliament should make the decision, but said queer couples have the right to choose their partners and should not be discriminated against based on sexual orientation.
An LGTBQ activist wearing a rainbow flag wristband gathers with others at the courtyard of India’s … [+] Supreme Court in New Delhi.
Key Facts
The top court’s five-judge bench unanimously ruled that there is “no unqualified right to marriage” and the institution of marriage “cannot be elevated to the status of a fundamental right.”
The bench also refused to strike down the Special Marriage Act, which recognizes interreligious marriages, for not recognizing non-heterosexual unions.
The bench issued a 3-2 verdict against allowing adoption of children by same-sex couples, saying it is not covered under existing law.
The bench was also split on recognizing a “civil union” between same-sex couples, with the 3-2 majority opposing it and saying LGBTQ individuals have the right to choose their partner and peaceful cohabitation, but “recognition of a civil union cannot exist in the absence of legislation.”
The court also ruled that transgender people “in a heterosexual relationship” have the right to marry under existing law—with India’s Chief Justice DY Chandrachud stating marriage between “a trans man and a trans woman or vice versa” is covered under the special marriage act.
The bench ordered the federal government to form a committee to examine issues faced by queer people.
Crucial Quote
Despite disagreeing on several matters, the entire bench dismissed the Indian government’s claim that same-sex marriages were an “urban and elitist concept.” Chief Justice Chandrachud said: “Queerness is not urban elite…It is not just an English-speaking man with a white collar job who can claim to be queer, but equally a woman working in an agricultural job in a village.” Justice Ravindra Bhat, who delivered the majority verdict, also said: “I agree queerness is not urban or elite.”
Key Background
Earlier this year, the Supreme Court decided to combine all petitions related to same-sex marriages from various state courts and transfer them to the top court. The petitions in state courts attempted to challenge sections of India’s various civil codes, including the Hindu Marriage Act, the Special Marriage Act and others. Prime Minister Narendra Modi’s government has steadfastly opposed calls for marriage equality and said same-sex marriages were not compatible with the “Indian family unit concept of a husband, a wife and children.” In 2018, the Indian Supreme Court struck down the colonial-era law known as Section 377 which criminalized homosexual relationships.
Surprising Fact
With Tuesday’s verdict, Taiwan remains the only country in Asia where same-sex marriage is legal.
Further Reading
Supreme Court says no to same-sex marriage or civil union; CJI recognizes civil unions in minority opinion (Bar And Bench)
