The Indian High Court on Tuesday rejected same-sex legalization in response to several petitions filed by conservative groups.
India’s highest court on Tuesday declined to legalize same-sex marriage and let Parliament decide, agreeing with Prime Minister Narendra Modi’s government that the legislature is the appropriate forum to rule on contentious issues.
The unanimous order by a five-judge court was a major disappointment to the large LGBTQ community in the world’s most populous country, five years after the court struck down a colonial-era ban on gay sex.
There was no immediate government response to the court ruling, but Modi’s nationalist Bharatiya Janata Party (BJP) administration had opposed petitions to the court on the issue, saying same-sex marriage is not “comparable with the concept of the Indian family unit of a husband, wife and children.”
The court decision came in response to more than a dozen petitions filed since last year. The court, headed by Chief Justice DY Chandrachud, heard arguments in April and May and delivered its verdict on Tuesday.
Chandrachud said there was some “agreement and disagreement about how far we have to go” on same-sex marriage, adding that four of the five judges had written separate rulings, reflecting the complexity of the case.
“This court cannot make laws. It can only interpret them and give effect to them,” Chandrachud said, while rejecting the government’s argument that being gay is “urban or elite.”
The court left the issue to a panel suggested by the government to address the “human concerns” of same-sex couples.
He said the panel should include experts with knowledge and experience in treating the social, psychological and emotional needs of people belonging to the gay community.
The panel should also consider giving same-sex couples access to services and facilities such as joint bank accounts and pensions, from which they are currently excluded.
Shock and tears
Chandrachud and a second judge referred to the recognition of unions or civil unions of same-sex couples but the other three judges disagreed.
“Marriage is a social institution. Marital status is not conferred by the state,” said Ravindra Bhat, one of the other three judges. “The idea of marriage is not a fundamental right.”
Members of the LGBTQ community were seen leaving the courthouse crying after the verdict, with some comforting each other.
“I didn’t expect it to be a very good trial, but I feel much worse than expected,” said Uday Raj Anand, who, along with his same-sex partner, was one of the petitioners in the case.
“What I had thought was that at least the court would make its position clear, it would say that it is not in a position to make or change laws, but it would certainly order the government to do so,” he said.
“So it’s a little shocking that we didn’t get even that amount.”
Asia largely lags behind the West in accepting same-sex marriage, with only Taiwan and Nepal allowing it on a continent where largely conservative values still dominate society.
Activists say that while the 2018 ruling that struck down the ban on gay sex affirmed their constitutional rights, it was unfair that they still lacked legal support for unions, a basic right enjoyed by straight married couples.
continue the fight
While LGBTQ+ Indians have made significant progress since the 2018 gay sex ruling, from representation on television to greater representation in politics and inclusive corporate policies, many still speak openly about their sexuality.
They say discrimination and abuse are rife, preventing them from accessing jobs, health care, education and housing. Gay couples often have difficulty renting houses or making mutual medical decisions in emergencies because they are not married.
Parul, a finance professional, and her partner have given each other powers of attorney in the event of a health emergency, in case hospitals refuse to accept them as next of kin.
Like many gay couples, they hoped the Supreme Court would reach a decision that would remove such difficulties and allow them to marry in India.
“Expectations were quite low,” said Parul, who goes by one name and now intends to marry her partner in Denmark, although she is unsure whether the marriage certificate will be accepted for joint bank accounts or insurance plans in Denmark. India.
“It’s always a fight,” he said.
But despite the court’s ruling on marriage, some activists said the judges had made positive observations in their decision, for example saying that transgender people in heterosexual relationships can marry under existing laws.
“Things are moving forward positively, so let’s keep our spirits high,” said Padma Iyer, mother of Harish Iyer, an outspoken gay rights activist and one of the petitioners in the case.
Padma, co-founder of Rainbow Parents, a collective of parents of children who identify as LGBTQ+, sparked a national debate about gay marriage eight years ago when she placed an ad in a Mumbai newspaper seeking a groom for her son.
“We can’t rest. We know what the struggle will be for our children,” he said.
“I don’t know when we will get peace for this community.”
Reuters
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