NEW DELHI — India’s highest court on Tuesday refused to legalize same-sex marriages, shifting the buck to Parliament in a decision that disappointed LGBTQ+ rights activists 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 panel heard 21 petitions seeking to legalize same-sex marriage.
Chandrachud said there were degrees of agreement and disagreement among the justices “on how far we should go” when it comes to same-sex marriages, but the justices unanimously agreed that the court cannot grant LGBTQ+ people the right to marry because it is a legislative measure. function.
“This court cannot legislate. It can only interpret it and give effect to it,” the chief justice said, reiterating that it was for Parliament to decide whether it could extend marriage laws to include unions homosexuals.
One of the petitioners, Mario da Penha, said it was “a day to be disappointed, but not to lose hope.”
“These petitions took an enormous amount of work, and many hopes and dreams of the queer community were attached to them – to lead a life that most other Indians take for granted. The fact that the dream could not be realized today Today is a disappointment for all of us,” he said.
He added that it was not yet clear whether the court had set a mandate or timetable for Parliament to act.
“Without this mandate, there is no pressure on Parliament to pass any legislation,” he said.
“There are homosexual couples today who are already families and relationships and who are pillars of society. That they do not benefit from the dignity and rights due to them is deeply disappointing,” said Karuna Nundy, one of the lawyers representing the petitioners.
The legal rights of LGBTQ+ people in India have expanded over the past decade, mainly due to the intervention of the Supreme Court.
In 2018, the top court overturned a colonial-era law that made same-sex sex punishable by up to 10 years in prison and expanded the gay community’s constitutional rights.
The ruling 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 has resisted legal recognition of same-sex marriage and rejected several petitions in its favor.
During the hearings, the government argued that marriage was only possible between a biological man and a biological woman, adding that same-sex marriages went against religious values and that the petitions only reflected ” urban elitist viewpoints.” Religious groups had also opposed same-sex unions, saying they went against Indian culture.
Adish Aggarwala, president of the Supreme Court Bar Association, said the court did the right thing in recognizing that this was a task of Parliament, an argument the government also made during the hearings.
The petitioners’ lawyers argued that marriage is a matter between two people, not just between a man and a woman. They said concepts of marriage have gradually changed over time and laws should recognize this.
By failing to recognize such unions, the government deprives same-sex couples of their constitutional right to equality and of the rights enjoyed by heterosexual married couples, from adoption and medical insurance to pensions. and inheritance, they argued.
“This court must push society to recognize same-sex marriage,” said one of the lawyers.
The petitioners hoped that the Supreme Court could challenge the government’s position.
Some judges have urged the state to ensure that same-sex couples do not face harassment or discrimination in accessing their basic needs, such as opening a joint bank account. They called for measures to raise awareness about queer identity, the creation of hotlines and shelters for members of the queer community facing violence.
The chief justice also rejected the government’s assertion that being queer was an “urban” concept, saying it is not just “an English-speaking man” or a “white-collar man” who can claim to be queer, but also “a woman”. work in an agricultural job in a village.
But overall, the five justices failed to grant legal recognition to same-sex unions.
Instead, the court accepted the government’s offer to create a special committee to study providing social and legal benefits to same-sex couples.
Homosexuality has long been stigmatized in traditional Indian society, although attitudes towards same-sex couples have changed in recent years. India now has openly gay celebrities and some high-profile Bollywood films deal with gay issues. Acceptance of homosexuality in India increased by 22 percentage points to 37% between 2013 and 2019, according to a Pew survey.
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 2012 government figures. However, gay rights activists and global estimates put them 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 allowing the registration of same-sex marriages for the first time. It is still unclear when the court will make its final decision on this case.
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