India's Supreme Court votes against legalizing same-sex marriage, landing a blow to LGBTQ rights in the country (Subhashish Panigrahi, Wikimedia Commons)
Court Ruling on Same-Sex Marriage
On October 17, India’s Supreme Court ruled against legalizing same-sex marriage in a narrow 3-2 verdict, dashing the hopes of pro-LGTBQ petitioners. However, with 53 percent of Indian citizens favoring the legalization of same-sex marriage, the court justices’ divisions regarding the verdict reflect growing support within the country for LGTBQ rights. Nevertheless, the rejection is best understood knowing that a majority of the Indian government remains staunchly conservative.
According to Prime Minister Narendra Modi, keeping marriage between a man and a woman is a foundation of the state, and the growing support of LGTBQ rights within the country supports “urban elitist views.” While the loss in court marked a depressive day for India’s LGTBQ community, a group of people often violently discriminated against, there is some degree of hope for the group. Great strides have been recently made regarding other aspects of protection for LGTBQ individuals. Although the majority of justices decided to keep course with conservative beliefs, it was agreed upon unanimously that a proposal to form an expert committee for the purpose of protecting LGTBQ rights would greatly benefit the queer community, signifying the possibility of progressiveness within India’s government.
The Courts Outlook
LGTBQ activists were enraged by the court’s decisions, while conservative leaders in government praised it. However, the Court’s reaction to its own verdict, as well as its selected commentary, is perhaps the most interesting. Despite striking down the plea, the court still bent towards greater equality in terms of LGBTQ rights. The court, as previously stated, unanimously supported the formation of a specific committee to address LGTBQ human rights issues, and multiple justices called for the establishment of hotlines and safe houses for those facing violent forms of discrimination. Additionally, many raised awareness for issues facing LGBTQ communities and called for the abolishment of discrimination in basic daily needs, such as the opening of joint bank accounts for same-sex couples.
Despite voting to strike down the plea, Chief Justice Dhananjaya Yeshwant Chandrachud rejected conservative views from the country’s foremost government leaders, asserting that in his legal opinion, being queer was not an “urban concept.” He even went as far as to say that “the right to choose one’s partner and the right to recognition of that union ought to be observed.” He, as well as several other justices and members of the Indian law community, noted that ultimately, the legalization of same-sex union is not up to the Supreme Court, but rather the Parliament, since it is an issue of legislation as opposed to the enforcement of rights. This was a very controversial opinion for both sides, with many petitioners arguing that without pressure from the Supreme Court, Parliament would be unlikely to act, let alone establish proper legislation.
Small Victories Within the Ruling
Certain details of the justices' opinions signify a win for members of the LGTBQ community. For example, it was specified that transgender individuals would be allowed to marry, with the stipulation that their identity must still align with traditional views of marriage. This means that transgender individuals are allowed to register their marriage under their chosen gender identity, so long as their union can still be deemed as a marriage between a man and a woman.
This represents a small victory for the transgender community in India, as the community as a whole has faced extreme discrimination, and had only received legal rights through the Transgender Persons (Protection of Rights) Act in 2019. The act aimed to eliminate employment discrimination towards transgender individuals; however, it also alienated the community by requiring proof of gender-confirmation surgery and stipulating that a District Magistrate must be “satisfied with the correctness” in order to legally register under the individual’s chosen identity.
While transgender rights still have a long road ahead compared to the policies of more socially progressive countries across the globe, the recognition of transgender individuals’ rights to properly register any heterosexual union remains a small victory for the community.
Previous Wins for India’s Queer Community
October 17 may have been a disappointing day for the country’s gay rights activists, but it is also important to note the great strides made within the last few years. Such strides include the decriminalization of gay sex in a 2018 ruling, which effectively overturned the categorization of gay sex as an “unnatural offense.” The law, while rarely invoked due to its innate violation of privacy, was occasionally used by law enforcement as a tool for harassment against the queer community. Its repeal represents India’s commitment to undoing the wrongs of lingering colonial beliefs. Justice Indu Malhotra commented that “history owes an apology” to LGTBQ people across India and beyond.
The Future of LGTBQ Rights in Asia
The loss of this case was undoubtedly a devastating blow for India’s LGTBQ rights movement, but it also was a blow to similar movements across the continent of Asia. Victories have been seen for LGTBQ rights in Asian countries marked by staunch conservatism. For instance, in Taiwan and Nepal, same-sex marriage was legalized in 2019 and 2023 respectively.
Many had hoped for progressiveness in India as well and that decisions in India’s Supreme Court would lead to yet another victory, creating even more momentum for similar fights. Instead, the decision to transfer the issue to Parliament devastated many queer individuals across Asia. Nonetheless, many petitioners have derived ambition from the loss, vowing to one day legalize same-sex marriage. They hope that a future free of discrimination lies ahead, both for India and queer-identifying individuals and communities across the globe.
Sources & Further Reading