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India’s supreme court declines to legally recognise same-sex marriage

Judges say decision should be made by parliament but stress that such unions should not face discrimination

The marriage ruling will be a disappointment for the LGBTQ+ community in India

India’s top court has declined to grant legal recognition to same-sex marriages, saying it is beyond its scope and should be decided by parliament, but emphasising that queer relationships should not face discrimination by the state.

The marriage ruling will be a disappointment for LGBTQ+ people in India, who had hoped the supreme court judges would recognise their constitutional right to marriage equality.

In a sign of how contentious the issue remains in India, the five-judge bench of the supreme court, led by the chief justice of India, said they had been divided on the matter, and four separate judgments were written by the bench. Two of the judges had supported same-sex civil unions but the majority verdict ruled against them.

Rohin Bhatt, one of the lawyers in the case, said: “Today the court has reaffirmed that queer citizens will be relegated to an unsympathetic legislature and an apathetic executive. We are second-class citizens, no matter how many judicial platitudes say otherwise. We will rise in rage and protest.”

In 2018 the supreme court scrapped a colonial-era law banning homosexuality in India. But while acceptance of homosexuality is growing, Indian society still remains largely conservative and there was resistance to opening up marriage to same-sex couples, who still face rampant discrimination and harassment in society.

Ankita Khanna, who was one of the petitioners in the case, said she was “deeply disappointed”.

“The hearings and the months thereafter had given us a lot of hope: that we were in the highest court of the country, and that our struggles were being heard and deliberated upon deeply,” she said.

“But what we got today was a deeply divided judgment that was unclear about what the law could offer as relief to the challenges of our unequal and diverse queer lives.”

Khanna added: “Having said that, the queer community will continue to move forward in solidarity and with resilience, as we always have.”

The ruling Hindu nationalist Bharatiya Janata party (BJP) government had opposed the case, calling the arguments for equality “urban elitist views” and stating that marriages were not “comparable with the Indian family unit concept of a husband, a wife and children”.

It had argued that the matter should be decided in parliament, not the courts.

The petitioners, which included dozens of LGBTQ+ couples and activists who came together in a collective lawsuit, had been fighting to amend India’s special marriage act – which allows civil unions between couples of different religions – to be expanded to include same-sex couples. In India, LGBTQ+ couples are denied rights such as joint bank accounts, being the legal next of kin, and recognition for inheritance, while marriage remains a fundamental pillar of society.

People watch the hearings and wait for the supreme court verdict in Mumbai.

The impassioned arguments for the case, which were heard in a marathon of hearings in April and May, had been followed closely across the country as they were livestreamed from the court.

However, on Tuesday, the chief justice of India, DY Chandrachud and the four other judges ruled that amending the special marriage act went beyond the scope of the court, amounting to “judicial lawmaking”, and was instead the job of the legislature.

In his ruling, Chandrachud emphasised that LGBTQ+ people should have the right to choose their partners and co-habit and should not face discrimination under the law.

“Choosing a life partner is an integral part of choosing one’s course of life. Some may regard this as the most important decision of their life,” he said. He instructed the government to form a high level committee to examine the concerns, rights and welfare entitlements of same-sex couples.

“Queerness is not urban elite. Homosexuality or queerness is not an urban concept or restricted to the upper classes of the society,” added Chandrachud. He had also expressed his support for LGBTQ+ couples being allowed to adopt, but was overruled by the majority of the bench.

Speaking outside court, Karuna Nundy, a supreme court lawyer fighting the case, emphasised that the rulings given by the bench had still “taken the law forward” in terms of LGBTQ+ rights. “There were judgments that spoke of the obligation of the state to look at civil unions, to examine the ways in which relationships of queer couples must be recognised and respected,” she said.

Justice Kaul, who was also part of the bench, was among those expressed his support for same-sex civil unions. “Non-heterosexual and heterosexual unions must be seen as both sides of the same coin,” he said.

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