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18-10-2023
Bureau Report
NEW DELHI: India’s Supreme Court has declined an appeal to legalize same-sex marriages in a blow for LGBTQ rights in the world’s most populous country.
The top court announced the ruling on Tuesday after hearing arguments in April and May, with three of five justices finding that the issue should be decided by parliament.
“The court, in the exercise of the power of judicial review, must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain,” Chief Justice Dhananjaya Yeshwant Chandrachud said.
The court instead endorsed a government proposal to create a panel to consider granting certain rights and benefits to same-sex couples.
Chandrachud said the state should provide some legal protections to same-sex unions, arguing that denying them “benefits and services” granted to heterosexual couples violates their fundamental rights.
“Choosing a life partner is an integral part of choosing one’s course of life,” he said.
“Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21 (of India’s constitution).”
Chandrachud said the government should also take steps to ensure LGBTQ people do not face discrimination, including by establishing hotlines and safe houses for those who are vulnerable and ending medical procedures that aim to change gender identity or sexual orientation.
The court’s ruling follows a petition arguing that the failure to recognize same-sex unions violated LGBTQ people’s constitutional rights.
India’s Bharatiya Janata Party government, led by Prime Minister Narendra Modi, opposed the petition, arguing the issue should be left to parliament and that a ruling legalizing same-sex marriage would play “havoc” with societal values.
“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,” the government said in a submission to the court.
Tuesday’s ruling comes five years after the country’s top court struck down a colonial-era ban on gay sex.
Nitin Jain, 26, an LGBTQ activist in New Delhi, said the community was disappointed with the judgement.
“The demand was recognition of the same-sex marriages and the court said no. It has held the status quo,” Jain told media.
“This is seen as an abdication of the court to fulfil its responsibilities.”
Asia, where traditional values hold sway in politics, has been slow to embrace LGBTQ rights.
Taiwan and Nepal are the only places in the region that recognize same-sex unions.
Despite homosexuality in India being decriminalized since 2018, LGBTQ activists say that sexual minorities often face discrimination in their daily lives.
