Indian Supreme Court Declines to Legalize Same Sex Marriage
On October 17, 2023, in New Delhi, the Indian Supreme Court reached the verdict of denying the recognition of same-sex marriages. Prime Minister Narendra Modi’s nationalist Bharatiya Janata Party (BJP) administration previously opposed petitions to the court because they view the ideology of same-sex marriage as incompatible with the “Indian family unit concept” of a husband, wife, and children.
Campaigners for the large LGBTQ+ rights movement in the world’s most populous country felt tremendous disappointment when they learned Indian law would continue to deny them the privileges extended to heterosexual couples. During the two-hour ruling, Chief Justice Dhananjaya Yeshwant Chandrachud stated, “queerness is a natural phenomenon.” Chandrachud hoped the queer community would not be discriminated against any longer in India.
Justice S. Ravindra Bhat said he was “eager for the formation of a high-powered committee to evaluate laws that indirectly discriminate against LGBTQ couples.” In India, homosexual couples are often denied compensatory benefits or social welfare entitlements that come with being legally married. India’s marriage laws prevent millions of LGBTQ+ couples from accessing legal benefits attached to marriage, such as adoption, insurance, and inheritance.
Over a dozen petitioners previously challenged the law, taking their case to the Supreme Court. Hearings for the arguments brought forth by the petitioners were held in April and May. The verdict came as a major disappointment, since five years earlier, the court seemed to be progressing towards legislative improvements for LGBTQ+ rights when they scrapped a colonial-era ban on homosexual intercourse.
Demonstration in favor of legalizing same-sex marriage, New Delhi, October 18, 2023. ANUSHREE FADNAVIS / REUTERS, Le Monde
The United States encouraged India to extend equal legal protection to same sex couples and heterosexual couples. A U.S. State Department spokesperson shared that the country “supports marriage equality globally,” will monitor follow-up steps from the Indian government as well as from civil society on the issue at hand, as a result of the court’s ruling. The Department of State acknowledged that the United States will continue to voice support for marriage equality and protections for LGBTQ+ persons and urge the Indian government to take the steps necessary to offer fair and equal legal protection to all of their citizens, regardless of sexual orientation.
Although India has a large LGBTQ+ community and celebrates queer pride in a variety of cities, attitudes towards homosexual relationships continue to remain a complicated issue stemming from India’s deep historical and cultural roots. In 1860, during India’s former colonial rule under the British, same-sex intercourse became criminalized and marriage rights were solely offered to heterosexual couples under a penal code. Yet, Hindu mythology dating back centuries illustrates men transforming into women; some holy texts also include third gender characters.
The oppression faced by the LGBTQ+ community can be largely attributed to the Victorian laws that governed India’s colonial past. However, during nearly a decade in power, Modi and the BJP party are working hard to free India from colonial baggage by renaming streets and cities. Yet, the party continues to fight to retain laws regarding homosexuality.
Campaigners in India shared that the law keeps members of the LGBT community trapped in the closet due to societal taboo surrounding the topic. Additionally, it invites other forms of discrimination and decreases individual safety levels through the form of harassment and blackmail. After the 2018 strike down of the same-sex intercourse law, public surveys show Indian acceptance of homosexuality grew by 38% since 2014. Despite such growth, conservatives within India continue to remain opposed to same-sex unions.