India’s top court has declined to legally recognize same-sex unions in a landmark ruling that also emphasized the rights of the LGBTQ community to be free of prejudice and discrimination.
Campaigners had sought to obtain the right to marry under Indian law, giving them access to the same privileges extended to heterosexual couples, but while that was denied they welcomed the court’s recognition of their relationships.
A five-judge constitution bench led by India’s chief justice delivered the much-anticipated verdict on Tuesday, streamed live across the nation and to crowds outside the court who gathered to watch on their cellphones.
During the two-hour ruling, Chief Justice D. Y. Chandrachud said queerness is a “natural phenomenon,” and told the government to ensure the “queer community is not discriminated against because of their gender identity or sexual orientation.”
Justice S. Ravindra Bhat said the right of LGBTQ couples to choose their partners was not contested, and they were entitled to celebrate their commitment to each other “in whichever way they wish within the social realm.”
However, he added: “This does not extend the right to claim any legal entitlement to any legal status for the same union or relationship.”
Bhat called for a “high-powered committee” to be formed to evaluate laws that indirectly discriminate against LGBTQ couples by denying them “compensatory benefits or social welfare entitlements” that usually come with being legally married.
“This court cannot within the judicial framework engage in this complex task, the state has to study the impact of these policies and entitlements,” he said.
India’s marriage laws bar millions of LGBTQ couples from accessing legal benefits attached to matrimony in relation to matters including adoption, insurance and inheritance.
More than a dozen petitioners had challenged the law, taking their case to the Supreme Court, which heard their arguments during hearings in April and May.
Susan Dias, one of the petitioners in the case, said she, along with her partner were “disappointed” with the verdict.
“We were hopeful that it would go a little more positively,” she said. “We filed the petition with the hope that we’d leave with some rights. So, definitely disappointment but I don’t think we’ve taken any steps back.”
The ruling government of the Bharatiya Janata Party (BJP) had opposed calls to legalize the unions.
In a submission to the court earlier this year, lawyer for the government, Solicitor Tushar Mehta, called same-sex marriage an “urban” and “elitist” concept – one that is “far removed from the social ethos of the country.”
‘It’s not a loss’
Dozens of LGBTQ activists gathered outside the Supreme Court in the Indian capital New Delhi while the verdict was being read.
Some welcomed the judgment as a progressive move, while others said it wasn’t good enough.
Pranav Grover, 20, said it was a “diplomatic” verdict. “It came in perspective with keeping both parties happy,” he said, adding: “Let’s start to focus on the positive.”
Another bystander, Faraz, said he was a little disappointed.
“When we got to know of the privileges, it is definitely a good thing,” he said.”It is not a loss.”
Amrita, who goes by the pronouns she/they, said while it was “very nice to be recognized by the justices,” it was time to “get a move on.”
They added: “This level of indifference was not expected after waiting for so many months.”
Celebrity chef and LGBTQ activist Suvir Saran said while the Supreme Court “didn’t give us the right to marry, it has used the bench as a classroom for educating the legislators and the citizens about homosexuality and the other.”
A complicated history
India has a large LGBTQ community and celebrates gay pride in cities across the country but attitudes toward same-sex relationships have been complicated.
Hindu mythology dating back centuries features men transforming into women and holy texts include third gender characters. But same-sex intercourse was criminalized and marriage rights limited to heterosexual couples under a penal code introduced by India’s British former colonial rulers in 1860.
During nearly a decade in power, Indian leader Narendra Modi and his ruling BJP party have been keen to shake off India’s colonial baggage, renaming streets and cities and championing an India in charge of its own destiny. But Victorian laws governing same-sex marriage are one throwback to the colonial past his party has fought to retain.
Campaigners in India have said the law doesn’t only trap members of the LGBTQ community in the closet, but also invites other forms of discrimination and provides a cover for blackmail and harassment.
After a decade-long battle in 2018, the Supreme Court struck down the colonial-era law that criminalized same-sex intercourse – though it left intact the legislation limiting marriage to heterosexual couples.
Since then, surveys have shown that acceptance of homosexuality has grown.
According to a Pew survey published in June, 53% people believed homosexuality should be accepted – a 38% increase from 2014.
Yet, despite this larger embrace, conservatives within India have been opposed to same-sex unions.
Top leaders from the country’s various religious organizations came together earlier this year to say marriage “is for procreation, not recreation.”