India’s Supreme Court rules against marriage equality in unanimous decision

In a landmark LGBTQ+ rights case, the Indian Supreme Court decided not to legalize marriage equality, saying it is the responsibility of parliament to determine whether same-sex couples should have the right to marry.

According to the Associated Press, Chief Justice DY Chandrachud explained that the judges unanimously believed the Court did not have the power to grant marriage equality, despite the fact that there were different views among the Court on whether or not same-sex marriage should be legal.

Related:

The lawyers & plaintiffs fighting for marriage equality in India have no plans to back down

The litigants spoke with LGBTQ Nation about their fight for equal rights.

“This court can’t make law, ” Chandrachud said. “It can only interpret it and give effect to it.”

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Lawyers for the plaintiffs, however, argued that LGBTQ+ couples must have the right to marry to achieve the equality guaranteed to all Indians in the constitution.

While the court wouldn’t grant the right to marry, it did approve the government’s proposal to create a panel that will consider providing LGBTQ+ couples with legal and social benefits.

The plaintiffs in this case took on a government that has been hostile to the idea of marriage equality in the past. Leaked documents acquired by Reuters earlier this year showed that the administration of Prime Minister Narendra Modi had been trying to convince the Court to decide not to allow LGBTQ+ couples the right to marry.

The Ministry of Law reportedly argued that “Living together as partners and having sexual relationship by same-sex individuals… is not comparable with the Indian family unit concept of a husband, a wife, and children” and the Court cannot “change the entire legislative policy of the country deeply embedded in religious and societal norms.”

Many activists had hoped that the Indian Supreme Court would rule in their favor. In 2018, the court made history when it ruled that homosexuality would no longer be considered a criminal offense.

The unanimous decision went beyond ending the country’s sodomy ban. “Any discrimination on the basis of sexual orientation violates fundamental rights,” wrote then-Chief Justice Dipak Misra.

“Social morality cannot be used to violate the fundamental rights of even a single individual,” he continued. “Constitutional morality cannot be martyred at the altar of social morality.”

But the court said that the ruling does not necessarily extend to matters like marriage.

One petitioner in the marriage equality case, Mario da Penha, told the AP the decision 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.”

According to Penha, it is unclear if the Court has required a certain timeline for Parliament to decide on marriage equality. If not, he said, “there is no pressure on Parliament to enact any legislation.”

In May, a couple involved in the case spoke with LGBTQ Nation‘s Bilal Kuchay about the importance of achieving marriage equality. Amburi Roy and Aparna Saha fled the country and now live in Germany, where they can live more openly as a couple.

“If LGBTQIA+ people had the same rights as heterosexual people in India, we wouldn’t have had to come to Europe to fulfill our dream of getting married,” they said. “The question implies that we should simply leave and go elsewhere to live our true selves, and should accept the status quo without trying to change it. As LGBTQIA+ individuals, we will live in India, our country, with full rights and protections.”

The couple added that motivating their battle is “our strong desire to become parents” and adopt children together.

They added, “The lack of legal recognition for our union poses challenges (like share insurance, medical emergencies, or financial hardship) in accessing the benefits and support that heterosexual couples enjoy. It also affects our sense of security, including the ability to be recognized as next of kin.”

The lawyer for the couple, Mihir Samson, also spoke with Kuchay and explained that for many couples, marriage equality would also provide them some protection from discrimination.

Samson told the story of another couple involved in the case, in which one member was abused by family members due to her sexuality.

“As a couple, their vulnerability is exacerbated by the fact that their relationship has no recognition in law and they are forced to say they are just friends every time they move to a new house or a job,” Samson said. “Marriage for them would not only acknowledge their commitment to one another, but act as a protective shield against the threats and violence of their natal family. Only when they are free from the shadow of this violence will they be able to forge a joint life together in the way they want.”