By Abhaya Srivastava
New Delhi, India — India’s top court declined on Tuesday to legalise same-sex marriages but said the country had a duty to acknowledge LGBTQ relationships and to protect them from discrimination.
A five-judge constitutional bench — set up to consider important questions of law — began hearing submissions seeking the legalisation of same-sex marriages in April, with arguments completed in May.
Advocates representing nearly two dozen petitioners said it was time for India to treat the country’s LGBTQ community as equal citizens under its constitution.
But their verdict said that the charter did not guarantee a fundamental right to marry that would extend to same-sex couples under existing law.
“It lies within the domain of parliament and state legislatures to determine the law on marriage,” Supreme Court Chief Justice D.Y. Chandrachud said during his verdict.
Chandrachud added that India still had a duty to acknowledge same-sex relationships and protect those in them from discrimination.
“Our ability to feel love and affection for one another makes us feel human,” he said from the bench.
“This court has recognised that equality demands that queer unions and queer persons are not discriminated against.”
The news was nonetheless greeted with disappointment by those who had gathered outside the court in the hopes of celebrating India becoming the second Asian jurisdiction outside Taiwan to legalise same-sex marriages.
“We are not satisfied with whatever the court has said”, Siddhant Kumar, 27, told AFP.
“This has been going on for years, we have been struggling for legal recognition,” he added. “We have to remain strong and continue our fight.”
The petitioners had said validating same-sex marriage would help them access some of the legal benefits of matrimony, including adoption, insurance and inheritance.
‘Complete havoc’
But the Hindu nationalist government of Prime Minister Narendra Modi has staunchly opposed same-sex marriage, and said that any change was up to parliament, not the courts.
“Any interference… would cause a complete havoc with the delicate balance of personal laws in the country and in accepted societal values”, the government said in its submission.
“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”, it added.
Marriages are governed by family laws for specific religions, such as the Muslim Marriage Act and the Hindu Marriage Act.
The judges have been considering whether the Special Marriage Act of 1954 — which allows marriages between people of different castes and religions — could be expanded.
A landmark ruling in 2018 struck down the British colonial-era law criminalising gay sex, and last year the court ruled that unmarried partners or same-sex couples were entitled to welfare benefits.
