“Homosexuality or queerness is not limited to urban and affluent spaces."
India’s Supreme Court has declined to grant legal recognition to same-sex marriages, denying tens of millions of LGBTQ couples the right to marry their partners.
In a lengthy judgement, the court urged the government to create legal recognition for same-sex couples so that they do not face discrimination but stopped short of including such couples within the existing legal framework of marriage.
The case involved 21 separate petitions from members of the LGBTQ community, who argued that not being able to marry violated their constitutional rights.
The government contested the petitions, which came just five years after India decriminalised gay sex, arguing that marriage is an institution between a man and a woman.
It was also argued that those seeking marriage equality represented an “urban elitist view for the purpose of social acceptance”.
Chief Justice DY Chandrachud oversaw the case as well as four other Supreme Court justices.
Hearings took place up until May 11, 2023, and had been deliberating its verdict for more than five months since then.
Justice Chandrachud said marriages were clearly defined as being between a man and a woman in India’s Special Marriages Act (SMA), under which weddings outside of the scope of traditional religious ceremonies such as interfaith and intercaste marriage are registered.
The petitioners had asked that the SMA be interpreted to also cover same-sex marriage.
Justice Chandrachud said the court’s role was not to make laws but only to interpret them, adding that reading words into the SMA would “be redrafting the law”.
However, he also argued that the “failure of the state to recognise the bouquet of rights flowing from a queer relationship amounts to discrimination”.
The judge also rejected the government’s submission that the push for same-sex marriage was only an “urban and elitist” concept.
He said: “Homosexuality or queerness is not limited to urban and affluent spaces.
“To imagine that queer people only exist in urban centres is to erase them [where they exist elsewhere].
“People may be queer regardless of whether they are from villages or small towns and regardless of caste or economic location.”
He concluded that “there is no universal conception of the institution of marriage and that it lies within the domain of parliament and state legislatures to enact laws recognising and regulating queer marriage”.
“This court cannot either strike down the constitutional validity of the Special Marriage Act or read words into the Special Marriage Act because of its institutional limitations.
“The court, in the exercise of the power of judicial review, must steer clear of matters, particularly those impinging on policy, which falls in the legislative domain.”
The view was also concurred to by Justice Sanjay Kishan Kaul and Justice S Ravindra Bhat in their own judgments.
The judges differed over whether the court should recognise the right to form same-sex civil unions.
Justice Chandrachud ruled in favour while S Ravindra Bhat, Hima Kohli and PS Narasimha emphasised that there was no unqualified right to marriage under the Indian constitution.
Justice Bhat said that although people have the right to choose their partners, “if it is agreed that marriage is a social institution, does it mean that any section of the society which wishes for the creation of a like institution, can seek relief by court?”
The court accepted the government’s proposal to set up an expert panel looking into the package of rights and privileges that can be extended to same-sex couples, short of permitting them to marry.
Previously, India’s government had indicated its willingness to extend some social benefits to same-sex couples, but what form the recognition of such couples would take remains unclear.
The committee, headed by the cabinet secretary, will look into the “administrative steps” that the government can consider for ensuring social security and other welfare benefits, Solicitor General Tushar Mehta informed the court in May.
This ruling means Taiwan and Nepal are the only Asian jurisdictions among 34 nations that permit same-sex marriage.