In a significant ruling, India’s Supreme Court declined to legalize same-sex marriage on Tuesday, deferring the decision to parliament. The unanimous verdict by a five-judge bench came as a disappointment to the country’s large LGBTQ community, following the court’s decision five years ago to scrap a colonial-era ban on gay sex.
Complexity and Legislative Jurisdiction
Chief Justice D.Y. Chandrachud, who led the bench, emphasized the complexity of the issue. “This court cannot make law. It can only interpret it and give effect to it,” he stated, echoing the government’s argument that same-sex marriage should be a matter for parliament to address. The government contended that same-sex marriage does not align with the traditional Indian family concept of a husband, a wife, and children.
Panel to Address “Human Concerns”
The Supreme Court’s decision left room for hope within the LGBTQ community by suggesting the formation of a panel, proposed by the government, to address the “human concerns” of same-sex couples. This panel is expected to include experts with knowledge and experience in dealing with the social, psychological, and emotional needs of the gay community. It will also explore granting same-sex couples access to services and facilities such as joint bank accounts and pensions, from which they are currently excluded.
Mixed Views on Recognizing Unions
While Chief Justice Chandrachud and one other judge leaned toward recognizing unions or civil unions for same-sex couples, three other judges disagreed. Judge Ravindra Bhat, among the dissenting judges, argued, “Marriage is a social institution. The marital status is not conferred by the state. The idea of marriage is not a fundamental right.”
Disappointment and Hopes for Legislative Action
Members of the LGBTQ community expressed their disappointment as they left the court, with many in tears. Uday Raj Anand, a petitioner in the case along with his same-sex partner, commented, “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.” Anand expressed shock at the court’s decision, reflecting the sentiment of many in the LGBTQ community.
While India lags behind the West in accepting same-sex marriage, activists argue that the 2018 ruling, which scrapped the ban on gay sex, affirmed their constitutional rights. However, they find it unjust that legal backing for same-sex unions, a basic right enjoyed by heterosexual married couples, is still elusive.
As the LGBTQ community awaits further developments, the ball is now firmly in the parliament’s court to address this significant civil rights issue.